Summary: (a) Criminal Procedure Code (V of 1898): ----S. 160—Federal Investigation Agency (FIA) inquiry—Legality of Joint Venture (JV) Agreement—Stay of criminal proceedings pending civil litigation—Principle of sub-judice—Binding effect of High Court's decision under Art. 201 of the Constitution—Doctrine of mens rea—Petitioners impugned notices issued by FIA under S.160 of the Cr.P.C. in connection with an inquiry into the legality of a Joint Venture Agreement between Pakistan Television Corporation (PTV), GroupM Pakistan Pvt. Ltd., and ARY Communications Ltd.—Lahore High Court, in Independent Media Corporation (Pvt.) Ltd. v. Federation of Pakistan (PLD 2022 Lahore 288), had already adjudicated that the JV Agreement resulted from a transparent and competitive bidding process and suffered from no legal infirmity—Petitioners argued that FIA’s inquiry was mala fide, aimed at prejudicing the Lahore High Court’s ruling and proceedings pending before the Sindh High Court regarding the JV Agreement’s validity—Held, under Art. 201 of the Constitution, a decision of the High Court on a question of law is binding on subordinate courts and executive functionaries—Doctrine of sub-judice under Art. 204(2)(c) of the Constitution prohibits initiation of proceedings that may prejudice a pending matter before the High Court—FIA inquiry and criminal proceedings against the petitioners stayed, as any determination of criminal liability depended on the outcome of pending civil proceedings before the Lahore and Sindh High Courts. ----Cited Cases: • Muhammad Akbar v. The State (PLD 1968 SC 281) • SW Sugar Mills Ltd v. FBR, Islamabad and Others (2020 PTD 925) • Abdul Ahad v. Amjad Ali and Others (PLD 2006 SC 771) • Misbah ud din Zaigham and Others v. FIA and Others (2021 CLD 906) • Akhlaq Hussain Kayani v. Zafar Iqbal Kiyani and Others (2010 SCMR 1835) • Universal Cables Industries Ltd. v. Federation of Pakistan (PLD 2020 Sindh 601) (b) Constitution of Pakistan: ----Art. 204(2)(c)—Contempt of court—Prejudice to pending proceedings—Judicial restraint on executive action—Effect of High Court’s decision on subordinate courts and executive authorities—Held, executive authorities, including FIA and PTV, could not initiate criminal proceedings that would directly or indirectly defeat the Lahore High Court’s ruling regarding the JV Agreement’s legality—Any investigative or prosecutorial action taken by FIA in this matter, while parallel civil proceedings were pending before the High Courts, would violate the doctrine of sub-judice and fall within the ambit of contempt under Art. 204(2)(c) of the Constitution. (c) Administrative Law: ----FIA Act, 1974—Jurisdiction of FIA—Fact-finding committees—Presumption of legality in executive actions—Standard for judicial intervention in investigative proceedings—FIA initiated inquiry No. RE-150/2022 based on the recommendations of a fact-finding committee constituted by PTV—Petitioners contended that the committee lacked impartiality as its members had previously approved the JV Agreement—Held, Courts generally do not interfere in police or FIA investigations unless there is a jurisdictional defect or evident mala fide—However, where an inquiry appears to undermine a judicial determination or pending litigation, the courts may exercise discretion to stay proceedings—FIA was barred from proceeding with any criminal charges against petitioners until resolution of pending civil litigation. (d) Corporate Law—Public Procurement: ----Public Procurement Regulatory Authority Ordinance, 2002 & Public Procurement Rules, 2004—Application to Joint Venture agreements—Determination of legal framework governing procurement processes—Fact-finding committee concluded that the JV Agreement violated the PPRA framework, while PTV’s Board had initially advised that the framework did not apply—Held, Lahore High Court left the question of PPRA framework applicability open but affirmed that the agreement was reached through a lawful and transparent process—FIA’s inquiry could not retroactively re-characterize the agreement as illegal in the absence of an appellate court setting aside the Lahore High Court’s decision. ----Disposition: Petitions allowed. FIA was restrained from framing criminal charges against the petitioners during the pendency of civil proceedings before the Lahore High Court and Sindh High Court. FIA was required to seek permission from the respective High Courts before initiating any further action.

Summary: (a) Public Procurement Rules, 2004: ----Bidding Process---Right of Bidder---Technical Disqualification---Fresh Tender Process---Vested Right in Procurement Process. The plaintiff, a bidder in a two-envelope tender process initiated by the Civil Aviation Authority (CAA) for car parking fee collection at Islamabad International Airport, challenged his disqualification on technical grounds and subsequent initiation of a fresh tender process. The plaintiff alleged mala fide intent, procedural irregularities, and suppression of his higher bid by the procurement authority. ----Key Principles Established: A bid is merely an offer and does not create any vested rights in favor of a bidder, even if it is the highest or lowest bid. A contractual right only arises once a bid is accepted and a formal contract is concluded. Allegations of mala fide intent must be substantiated with clear evidence, and procedural irregularities must demonstrate substantial prejudice to the bidder. In case of grievances in public procurement processes, the aggrieved party has an alternate remedy under Rule 48 of the Public Procurement Rules, 2004, which must be pursued before approaching the courts. If a bidder is disqualified for non-compliance with mandatory technical criteria, the procuring agency has the right to proceed with a fresh tender process. ----Cited Cases: Guinault SA PA Orleans Sologne v. Federation of Pakistan and others (2021 YLR 692) Muhammad Khalil v. Faisal M.B. Corporation and others (2019 SCMR 321) Babu Parvez Qureshi v. Settlement Commissioner Multan and Bahawalpur Divisions and others (1997 SCMR 337) Mandokhail Brothers Commercial Trading and Government Contractor v. Chairman Civil Aviation and others (2017 CLC 221) ----Disposition: Interlocutory applications (C.M.A. No. 21126/23 and 561/24) seeking to restrain further auction proceedings and challenge the disqualification were dismissed. The Court held that the plaintiff had no vested right to the award of the contract, and the procurement process conducted by the CAA was in line with applicable rules and regulations.

Summary: Background:This case involves a civil revision petition filed by the Province of Punjab (petitioners) against Firm Friends & Engineers Bahawalpur (respondent-contractor) concerning a contractual dispute. The contract, awarded on 16th April 1986, was for the construction of a metalled road from Qaimpur to Baqainwala in Bahawalpur district. Due to an injunctive order delaying the project, the respondent-contractor sought extensions, which were granted with penalties. Despite the extensions, delays persisted, leading to the contractor being declared a defaulter on 24th January 1988. Following disputes over the payment of dues, arbitration was agreed upon but was stalled until 2007 when an award was finally issued. The respondent-contractor sought judicial modification of this award, which the civil court modified in 2012 to include interest payments. Subsequent appeals by the petitioners were dismissed, prompting this civil revision.----Issues:Whether the modifications to the arbitration award by the lower courts were permissible under the Arbitration Act, 1940.Legitimacy of the respondent-contractor's application to the civil court in terms of timeliness and procedural correctness.Assessment of the petitioner?s objections to the lower court decisions, particularly concerning the interest awarded and procedural handling of the case.----Holding/Reasoning/Outcome:The Lahore High Court dismissed the petition, upholding the decisions of the lower courts. The court determined:The modifications made to the arbitration award by the lower courts were within legal bounds as the courts have the authority under Section 15 of the Arbitration Act, 1940, to modify an award if necessary conditions are met.The application by the respondent-contractor was timely under Article 181 of the Limitation Act, 1908, as the respondent was not issued a notice by the arbitrators, altering the usual limitation period.The award of interest on the owed amount was justified as the respondent-contractor was entitled to interest from the date payment was due under Section 29 of the Arbitration Act, 1940.Citations/PrecedentsAscon Engineers (Pvt.) Ltd. v. Province of Punjab (2002 SCMR 1662)Dawood Cotton Mills Ltd. v. K.F. Development Corporation Ltd. (2006 SCMR 1555)Province of Punjab through Secretary, Housing and Physical Planning, Lahore v. Ilam Din (1998 SCMR 110)Several other cases cited were distinguished based on their facts or applicability, affirming that the principles established did not directly apply to the issues at hand in this specific revision petition.

Summary: Background: In Writ Petition No. 2050/2019, petitioners challenged the agreement executed on 30.10.2019 and the order dated 16.10.2019, seeking annulment and a directive for issuing a tender for constructing a 400 feet safety wall to utilize the land comprising survey Nos. 1962 and 1979 measuring 35 kanal 19 marlas near Al-Shamas Bridge Bagh. They claimed the agreement violated procurement rules and was made without proper advertisement or tendering process. ----Issues: 1- Whether the agreement between the Municipal Corporation Bagh and respondent No. 7 violated the procurement rules and regulations. 2- Whether the petitioners had the locus standi to challenge the agreement and order. ----Holding/Reasoning/Outcome: The court found that the Municipal Corporation Bagh did not follow the proper procedure as outlined in the Azad Jammu & Kashmir Local Council (Contracts) Rules 1982 and the Azad Jammu & Kashmir Public Procurement Regulatory Authority (PPRA) Act 2017. There was no public notice or advertisement for the contract, violating the transparency and fairness requirements. The court determined that the petitioners had the locus standi to file the petition, as their interests were directly affected by the agreement and the procurement process. The court directed the respondents to advertise the proposed work in accordance with the law and ensure transparency and fairness in the process. The writ petition was disposed of with these directions, and no order as to costs was made. The judgment emphasized the importance of following procurement rules and maintaining transparency in public contracts. ----Citations/Precedents: Azad Jammu & Kashmir Local Council (Contracts) Rules 1982, Section 7 Azad Jammu & Kashmir Public Procurement Regulatory Authority Act 2017 PPRA Rules 2017, Rule 42 (Alternative methods of procurements) [2014 SCR 1385] [AIR 1982 SC India 149] [PLD 1992 Kar. 54] [2008 PLC CS 11] [PLD 2013 High Court of AJ&K 34] [SCMR 2012 455] [SCMR 1998 2268]

Summary: ''Quality Assurance security and performance guarantee are mutually exclusive obligations'' ---- BackgroundM/s Bilawal Gull Builders and other petitioners, identified as bidders, invoked the constitutional jurisdiction of the Lahore High Court, Multan Bench, challenging the actions and directions of procuring agencies in the tendering process for civil works in various districts of Southern Punjab. The primary issue was the demand by procuring agencies for the petitioners to furnish "Quality Assurance Security" (QAS) or "Quality Control Guarantee" (QCG). Some petitioners also contested the directive that security from insurance companies was unacceptable, asserting that only bank-issued securities were deemed valid, which they argued contravened the Punjab Procurement Regulatory Authority Act, 2009, and the Punjab Procurement Rules, 2014.----Issues:Legality of Demanding QAS/QCG: Whether the demand for QAS or QCG by procuring agencies, in addition to the performance guarantee required under the Punjab Procurement Rules, 2014, is lawful.Restriction on Type of Security: The validity of the procuring agency's restriction on accepting only bank-issued securities and rejecting those from insurance companies.----Holding/Reasoning:The Lahore High Court held that the demand for QAS or QCG does not conflict with the Punjab Procurement Rules, 2014, particularly Rule 56, which mandates a performance guarantee. The court clarified that QAS or QCG serves as an additional security for bids quoting prices lower than the estimated cost, aiming to cover the differential and ensure serious bidding. This additional security is considered distinct from the performance guarantee required upon contract award.Regarding the type of security accepted, the court endorsed a policy decision to exclude securities from insurance companies, deeming it within the purview of the procuring agency's discretion. The exclusion was found not to violate the provincial procurement regime, as the Punjab Procurement Regulatory Authority has the authority to set standard bidding documents specifying acceptable forms of security.---Citations/Precedents:A.M. Construction Company (Private) Limited v. Province of Punjab (2023 CLC 616): This case addressed similar issues regarding additional performance security and was referenced for its principles but distinguished based on factual differences.------M/s Jalal Construction Company v. The Secretary C&W Department, Government of Punjab (2024 LHC 329): This judgment, addressing the acceptability of insurance bonds as securities, supported the policy decision to limit acceptable securities to those issued by banks.

Summary: Issue: The main issue in this case is whether the petitioner is entitled to the release of its bid security after its bid was rejected and the bid security forfeited by the respondent.----Facts: The petitioner, in a joint venture, participated in a tender issued by the National Transmission & Dispatch Co. Ltd. (NTDC) for the design, manufacture, supply, installation, testing, and commissioning of a plant for a grid station. After the technical evaluation, the financial bids of two technically qualified bidders, including the petitioner, were opened. The petitioner submitted the lowest bid. During the process, the NTDC raised queries regarding the bid, which the petitioner duly responded to, accepting corrections as desired by NTDC. However, the NTDC later rejected the petitioner's bid and forfeited its bid security, citing the petitioner's refusal to accept arithmetical corrections. The petitioner challenged this decision through a constitutional petition.----Holding: The court held that the petitioner's refusal to accept arithmetical corrections, as stated by NTDC, was erroneous. The petitioner had, in fact, accepted and responded to the corrections sought by NTDC. Additionally, the court found that the bidding documents did not provide for forfeiture of bid security in the circumstances described by NTDC. Therefore, the decision to reject the bid and forfeit the bid security was unlawful. The court overruled the objections raised by the respondents regarding the maintainability of the petition and directed the respondents to release the petitioner's bid security.----Legal Principle Applied: The court applied the principle of Contra Proferentem, which states that ambiguities in contracts or documents are construed against the drafter. Since the bidding documents did not explicitly allow for the forfeiture of bid security in the circumstances described by NTDC, the court interpreted the documents unfavorably against the respondent.----Decision: The court ruled in favor of the petitioner, declaring the rejection of its bid and the forfeiture of its bid security unlawful. The respondents were directed to release the petitioner's bid security.---Quote: ''The act of confiscation of bid security while rejecting the bid and scraping procurement process was unlawful since the Petitioner did not refuse to accept arithmetic errors as desired by the procuring agency and the latter had itself opted for fresh procurement process.''

Summary: Background: The petitioners sought a writ from the Islamabad High Court directing the National Highway Authority (NHA) to award them the contract for constructing the Bhong Interchange on the Sukkur-Multan Motorway (M-5). The petitioners were disqualified in the bid evaluation process for submitting an incorrect withholding tax rate in their bid. They contested the disqualification, arguing that the error was a bona fide mistake and should have been rectified. The NHA, however, awarded the contract to the respondent, IKAN Engineering Services (Private) Limited. ----Issues: 1- Whether the petitioners' disqualification for submitting a bid with an incorrect withholding tax rate was justified. 2- Whether the petitioners should be allowed to rectify the error in their bid during the clarification process. 3- Whether the reduction of respondent No.5's bid after the bids were opened violated public procurement rules. ----Holding/Reasoning/Outcome: The court held that the petitioners' bid was correctly disqualified because the misstatement of a 2% withholding tax (instead of the applicable 7%) was a material error. Allowing the petitioners to correct the bid would change the substance of the bid, which is prohibited under Rule 31(1) of the Public Procurement Rules, 2004 (PPR-2004). The court agreed with the NHA that the petitioners’ attempt to rectify the error after the bid evaluation process violated public procurement rules, which prohibit modifications to bids after submission. The court emphasized that the procurement process must remain transparent and free from manipulation. While the court acknowledged that the NHA improperly allowed respondent No.5 to reduce its bid after the bids were opened, it did not nullify the tender because respondent No.5's final bid was still higher than the petitioners’. However, the court cautioned the NHA against allowing such practices in the future. ----Citations/Precedents: Gamalto Middle East FZ-LLC vs. Federation of Pakistan, 2020 CLD 151 National Institutional Facilitation Technologies (Pvt.) Ltd. vs. The Federal Board of Revenue, PLD 2020 Islamabad 378 West Bengal State Electricity vs. Patel Engineering Co. Ltd., AIR 2001 SC 682 Nasir Ali vs. Muhammad Asghar, 2022 SCMR 1054

Summary: The core issue revolved around the demand for additional performance security from the contractors who had submitted bids for various construction works following public advertisements by the Communication & Works Department, Irrigation Department, and Punjab Local Government. The demand was based on a clause in the Bid Document that required the lowest bidder to deposit additional performance security if there was a significant difference between the total tendered amount and the approved estimated amount.-----Issues:The central issue before the Supreme Court of Pakistan was whether the procuring agency could require the bidder to pay additional performance security over and above the bid security and performance guarantee provided under the Punjab Procurement Rules, 2014. Specifically, the Court examined whether the bidding documents could include terms and conditions that were over and above or inconsistent with these Rules.----Holding/Reasoning/Outcome:The Supreme Court, after a thorough examination of the Punjab Procurement Regulatory Authority Act 2009, the Punjab Procurement Rules, 2014, and other relevant documents, held that the additional performance security demanded from the lowest bidders was unlawful and violative of the Rules. The Court reasoned that the regulatory framework under the Act and the Rules provided a stable and predictable environment for procurement, and deviation from this framework could create uncertainty and confusion. The Court emphasized the principles of transparency, level playing-field, and non-discrimination in public procurement, and found that the imposition of additional performance security was inconsistent with these principles. Therefore, the demand for additional performance security and the clauses related to it in the bidding document were set aside.---Citations/Precedents:Punjab Procurement Regulatory Authority Act 2009: Establishes the regulatory framework for public procurement in Punjab, emphasizing governance, transparency, and quality.Punjab Procurement Rules, 2014: Provides specific regulations for public procurement, including provisions on bid security and performance guarantee.OECD Principles for Integrity in Public Procurement: The Court referenced these principles, which advocate for transparency, good management, prevention of misconduct, and accountability in public procurement.Quotes from Justice Sandra Day O?Connor and Chief Justice Warren E. Burger: Emphasized the importance of alternative dispute resolution and mediation in the legal process.Roger Fisher and William Ury, "Getting to Yes": Highlighted the benefits of mediation over litigation.Hazel Genn, "Judging Civil Justice": Discussed the judicial encouragement of settlements to reduce caseloads and promote efficiency.Lord Woolf's "Access to Justice: Final Report": Predicted that traditional trials would become the exception in dispute resolution.

Summary: Facts:The petitioners are registered distribution contractors with SNGPL, involved in ditching, backfilling, reinstatement, etc.In 2018 and again in 2020-2021, petitioners paid a refundable security amount for contractor pre-qualification, as required by SNGPL.Following a challenge to this security requirement by another contractor in the Islamabad region, SNGPL decided to refund these security amounts and introduced new conditions for contractor pre-qualification via a memorandum dated 13th September 2023.The petitioners, aggrieved by the non-refund of their security deposits and the introduction of new conditions, filed a writ petition after their applications for the refund were denied by SNGPL.-----Issues:Whether the memorandum issued by SNGPL, introducing new pre-qualification conditions and affecting the refund of security deposits, can be applied retrospectively.Whether the terms of the memorandum are enforceable during the currency of existing contracts between the petitioners and SNGPL.----Judgment:The court observed that executive orders such as the contested memorandum cannot operate retrospectively unless explicitly stated.The court found that introducing conditions detrimental to the petitioners' interests during the term of an already executed contract is unlawful.The court referenced precedents stating that while contractual disputes are typically outside the purview of constitutional jurisdiction, exceptions exist when public interest is involved or when governmental actions are in question.The court partly allowed the petition, setting aside the order dated 15th December 2023 as illegal and unlawful. SNGPL was restrained from enforcing the 13th September 2023 memorandum's conditions on the current contracts between the petitioners and SNGPL.----Principle:This judgment underscores that executive or administrative orders cannot be applied retrospectively to alter the terms of existing contracts, especially when such alterations are to the detriment of one party. Moreover, it reaffirms the principle that while contractual matters between private parties and public functionaries generally fall outside constitutional jurisdiction, exceptions exist, particularly when issues of public interest or governmental actions are involved.---- ''The first and foremost question which arises herein is that as to whether a memorandum can be given effect retrospectively. There is no cavil that this Court in exercise of constitutional jurisdiction can neither settle the terms and conditions of the contract interse parties nor direct the executive to insert or exclude certain condition in the contract, which undoubtedly is within the domain of the executive. There is also no denial to the proposition that in the matter of enforcement of contractual obligations, this Court in ordinary course abstains to exercise constitutional jurisdiction for enforcement of the terms and conditions of the contract or to remedy the breach of contract but at the same time the constitutional jurisdiction cannot be abridged if some perversity or patent illegality is floating on the surface of the record. It is an oft repeated principle of law that though constitutional jurisdiction ordinarily should not be exercised in case of breach of contract but if such breach does not entail any inquiry or examination of minute or controversial questions of fact, if committed by Government, semi-Government or Local Authorities it can adequately be addressed in exercise of jurisdiction contemplated under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. Guidance to this effect can be sought from Messrs AIRPORT SUPPORT SERVICES versus THE AIRPORT MANAGER, QUAID-E-AZAM INTERNATIONAL AIRPORT, KARACHI and others (1998 SCMR 2268).''

Summary: Issue:The primary legal issue centered on whether procuring agencies can exclude insurance bonds as a form of performance security and the legality of the PPRA's circular in light of existing procurement laws and Standard Bidding Documents (SBDs).---Holding:The Lahore High Court held that procuring agencies possess the discretion to determine the acceptable form of performance security, including the exclusion of insurance bonds, within the parameters of the procurement framework established by the relevant laws and regulations. The court found that such discretion does not contravene the Standard Bidding Documents (SBDs) developed by the Pakistan Engineering Council (PEC) or the advisory decisions made by the Executive Committee of National Economic Council (ECNEC).---Reasoning:The court's reasoning was grounded in an analysis of the Public Procurement Regulatory Authority (PPRA) Ordinance 2002, the PPRA Act 2009, and the respective rules and regulations under both the Federal and Punjab governments. It was determined that these legal frameworks grant procuring agencies the authority to establish their procurement procedures, including the specification of performance securities. The court also noted that while the SBDs prepared by PEC serve as a benchmark for engineering contracts, they are not mandatory for government procurement processes. Furthermore, the court held that the ECNEC's advisory decisions do not supersede the statutory provisions, allowing procuring agencies the flexibility to amend or adapt SBDs as necessary for their specific procurement needs.---Order:The court directed the procuring agencies to issue fresh notices to the petitioners, requiring them to furnish the specified form of security as per the applicable SBDs within 28 days from the issuance of the notice. Failure to comply could result in actions in accordance with the terms and conditions of the applicable contract.--- Discussed case law:However, the judgment did reference a decision by a Single Bench of the Lahore High Court in W.P. No. 72544 / 2021 titled "M/s RMS Pvt. Ltd. v. Govt. of the Punjab & others," where deviation from PEC's SBDs was considered unlawful with respect to the exclusion of insurance bond/guarantee by a procuring agency in Punjab. It is important to note that this decision was mentioned to have been suspended by a Division Bench of the Lahore High Court at the time of this judgment.Moreover, the judgment mentioned the decision in the case titled "Nisar Ahmed Khan v. National Highway Authority and others" decided by a Division Bench of the High Court of Sindh in C.P. No. D-2779 / 2023 on 03.08.2023, which recognized the right of a procuring agency (in this case, the National Highway Authority) to prescribe the form of performance guarantee under the SBDs of PEC.