LHC backs PPRA ruling in Fesco procurement dispute

LAHORE: The Lahore High Court has upheld a decision by the Public Procurement Regulatory Authority’s appellate committee in a procurement dispute involving Faisalabad Electric Supply Company, ruling that a procuring agency cannot add fresh grounds for disqualification beyond the criteria set out in the bidding documents.

Justice Raheel Kamran dismissed Fesco’s writ petition and maintained the appellate committee’s order, which had overturned the company’s rejection of a bidder during a public procurement process conducted under the Public Procurement Rules, 2004.

According to the case details, Fesco had invited bids for the procurement of various items. M/s Associated Technologies (Pvt.) Ltd and another company took part in the process. After evaluating the bids, Fesco declared Associated Technologies commercially non-responsive on the basis of adverse performance feedback it had obtained from Hyderabad Electric Supply Company and awarded the contract to another bidder.

The company first challenged the decision before Fesco’s Grievance Redressal Committee, but its plea was unsuccessful. It then approached the PPRA appellate committee, which accepted the appeal and set aside the grievance committee’s decision.

Before the high court, Fesco argued that the bidder had a record of unsatisfactory conduct in a Hesco tender and had also concealed pending litigation against Hesco. It further submitted that the procurement process had already been completed, and that the successful bidder had supplied the goods and received payment.

In his ruling, Justice Kamran said Rules 29 and 30 of the Public Procurement Rules required procuring agencies to assess bids strictly on the basis of pre-disclosed criteria contained in the bidding documents.

The judge observed that Fesco had relied on adverse feedback from Hesco relating to a separate procurement exercise that had not resulted in a contract and did not form part of the bidder’s disclosed supply record. He also noted that the evaluation report showed the respondent company had quoted rates lower than those offered by the competing bidder for all items under procurement.

The judgement further noted that the respondent company had provided details of 34 completed projects. Justice Kamran ruled that such material could not be treated as an independent basis for disqualification because it had not been expressly included in the bidding criteria.

Court stresses transparency in procurement

Justice Kamran observed that public procurement must remain transparent, fair and predictable, and said procuring agencies could not enlarge or alter evaluation criteria during the bidding process.

Dismissing Fesco’s petition, the court held that the PPRA appellate committee’s decision did not suffer from illegality, perversity or any jurisdictional defect that would justify constitutional interference.

The ruling leaves intact the appellate committee’s decision that had set aside Fesco’s rejection of the bidder in the dispute.