Abdul Monem Ltd. and others Vs. Bangladesh and others, 3 LNJ (2014) 466

Judge: Quamrul Islam Siddique,

Court: High Court Division,,

Advocate: Mr. Rajik-Al-Jalil,Mr. Rokanuddin Mahmud,,

Citation: 3 LNJ (2014) 466

Appellant: Abdul Monem Ltd. and others

Respondent: Government of Bangladesh and others

Subject: Writ Petition,

Delivery Date: 2008-11-26

 
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Syed Mahmud Hossain, J.
And
Quamrul Islam Siddiqui, J.

 
Judgment on
26.11.2008
  Abdul Monem Limited, represented by the Director, Construction Division.
---- Petitioner.
(In W.P. No. 5404 of 2008.)
Mir. Akhter Hossain Limited, represented by its Managing Director.
-----  Petitioner.
(In W.P. No. 5405 of 2008.)
Islam Trading Consortium Limited, represented by its Chairman. 
----- Petitioner.
(In W.P. No. 5406 of 2008.)
Concord Progotee Consortium Limited, represented by its Office Secretary,  
--- Petitioner.
 (In W.P. No. 5407 of 2008.)
Bengal Development Corporation Limited, represented by its Director.
--- Petitioner.
 (In W.P. No. 5408 of 2008.)
-Versus-
Government of Bangladesh, represented by the Secretary, Ministry of Communications Bangladesh Secretariat, P.S. Ramna, Dhaka-1000 and others. 
---- Respondents.

Constitution of Bangladesh, 1972
Article 102
In these 5 (five) writ petitions , Rules were issued in identical terms calling upon the respondents to show cause as to why the impugned memo dated 07.07.2008 cancelling the tender of 4-Lanning of Dhaka–Chittagong Highway Project and directing re-processing of the procurement activities afresh should not be declared to have been done without lawful authority.

Admittedly, the estimated cost of the project is over Tk. 55 crore and hence the power of acceptance of the tender lies with the Cabinet Division (Purchase and Economic Section). When this question arose whether the Ministry of Communication had jurisdiction to cancel the tender, the Cabinet Division formed a 2-member committee to enquire into the matter. After enquiry, it submitted its report to the Cabinet Divisions. But the Cabinet Division did not have the occasion to consider the report submitted by the enquiry Committee. In fact, the Cabinet Division (Purchase and Economic Section) is in seisin of the matter. But the Cabinet Division is yet to give its decision on the matter. Since the Cabinet Division is in seisin of the matter, the Cabinet Division was directed to dispose of the matter in the light of the observations made in the judgment. . . . (2, 17 and 20)

Mr. Rokanuddin Mahmud with
Mr. Tanjib-ul Alam
Mr. Abdullah Mahmood Hasan.
---For the Petitioners.
(In W. P. Nos. 5404, 5405, 5408 of 2008).

Mr. Feda-E Kamal, Advocate
. . . For the Petitioner
(In W. P. No. 5407 of 2008)

Mr. Razik Al-Jalil, D. A. G. with
Mr. Sheikh Taimur Reza Hasan, A.A.G.
---For the Respondents
(In all the writ petitions)

Writ Petition Nos. 5404, 5405, 5406, 5407 and 5408 of 2008
 
JUDGMENT
Quamrul Islam Siddiqui, J.
 
These 5 (five) Rules have been heard together and are being disposed of by this common judgment as they do involve common questions of law and of facts.

In these 5(five) Writ Petitions, Rules were issued under Article 102 of the Constitution of the People’s Republic of Bangladesh in identical terms calling upon the respondents to show cause as to why the impugned letter bearing Memo No. Unnayan-1/Dha-Cha-4 Lane-2/2008-462 dated 7.7.2008 (Annexure-B) issued by respondent No. 4 cancelling the tender of 4-Laning of Dhaka-Chittagong Highway Project (Daudkandi-Chittagong Section), Contract Package No. 1-10 (Road Works) and directing re-processing of the procurement activities afresh should not be declared to have been done without lawful authority and is of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.  

At the time of issuance of the Rule, the petitioners, however, obtained an interim order staying the operation of the impugned memo dated 7.7.2008 (Annexure-B) for a period of 2(two) weeks. Later, the stay passed by this Court was stayed by the Appellate Division.

The common facts leading to the issuance of the Rules, in brief are:-

The petitioners are the leading construction companies of the country and are involved in re-construction of various landmark buildings and infrastructure projects in Bangladesh. They are the pioneers in the construction of roads and highways in Bangladesh and have undertaken construction of large infrastructure development projects in the Roads and Highways department and have successfully completed a number of projects. The Dhaka-Chittagong main road is one of the busiest highways in Bangladesh. The highway is used by importers and exporters to deliver goods to and from Chittagong and Dhaka. It is also used to interconnect Chittagong-Dhaka with Comilla and Feni. But because of single lane, this highway has been considered extremely dangerous for the users. Considering the urgency of four lanning highways, the present Government undertook a project and invited tenders from the prospective bidders. In response to an international tender for pre-qualification published in various newspapers on 29.10.2005, the petitioners submitted its proposal to participate in the bidding process of four lanning of Dhaka-Chittagong Highway Project. By a letter being Memo No. 4LP/ Tender /882 dated 10.3.2008 issued by respondent No. 3, the petitioners were informed that they were pre-qualified to submit tender for the project. In pursuance of the said letter, the petitioners were invited to submit sealed tenders for the execution and completion of the project. The Ministry of Communication by its letter dated 27.3.2008 directed respondent Nos. 2 and 3 to follow the Public Procurement Act 2006 (shortly, the Act, 2006) and the Public Procurement Rules, 2008 (shortly, the Rules, 2008). The petitioners purchased the tender documents for 10 sets of total package but according to law they were eligible to be awarded only one package. After purchase of the tender documents, the petitioners were notified about the pre-bid meeting for the clarification on the tender documents. According to the tender documents, the pre-bid meeting was held on 8.4.2008. The petitioner submitted the tender accompanied by security money for each package and other supporting documents. They were present at the tender opening ceremony and after opening of the tenders, the documents were sent to the Tender Evaluation Committee (TEC) which after due deliberation and consideration of the proposals submitted by the bidders found the tenders of the petitioners competitive and responsive. Accordingly, TEC recommended to take next necessary steps. Considering the report of the ‘TEC’, respondent No. 2 also recommended that the Ministry of Communication was to take next steps and proceed to award the tender to the successful bidders. While the petitioners were eagerly waiting for the notification of award in the form of Letter of Acceptance, they received the impugned letter bearing No. Unnayan-1/Dha-Cha-4 Lane-2/2008-462 dated 7.7.2008 issued by the Ministry of Communication canceling the whole tender on a flimsy ground of not providing 28 days period for submission of performance guarantee of the tender document at TDS (Tender Data Sheet Clause 37.1) they provided for 7 days’ time only. Respondent No. 2 also directed to re-process the procurement activities afresh. The cancellation of the tender by the Ministry of Communication is without lawful authority and such cancellation is also against the public interest. In the aforementioned circumstances, the petitioners served notice demanding justice upon the respondents on 13.7.2008 for withdrawal of the impugned letter, but of no avail.

Being aggrieved by, and dissatisfied with, the impugned order dated 7.7.2008 passed by respondent No. 2, the petitioners moved this Court and obtained the instant Rules Nisi.

The petitioner in Writ Petition No. 5404 also submitted supplementary affidavit. In that affidavit it has been stated that the opinion of the Ministry of Law Justice and Parliamentary Affairs was sought for and that the Ministry gave its opinion stating that 7 days time for submitting performance guarantee was not violative of the Rules, 2008 or the Act, 2006. In another supplementary affidavit filed by the petitioners, it has been stated that the Cabinet Division by its notification bearing No. Mo:Pa: Be:/Sha-Kro:A:/Kroei-20/2008-347 dated 7.8.2008 formed a 2(two) -member committee to enquire into the matter and submit report to the Cabinet Division.

In Writ Petition No. 5404 of 2008, the petitioner also submitted a supplementary affidavit in which it annexed the report of the enquiry committee constituted by the Cabinet Division.

Respondent No. 3 entered appearance by filing affidavit-in-opposition controverting all the material allegations made in the Writ Petitions. The case of respondent No. 3, in short, is that the Department of Roads and Highways invited tenders for Dhaka-Chittagong 4-laning project. Subsequently, the Government cancelled the tenders and asked respondent No. 2 to arrange for re-tender, vide memo No. Unnayan-1 Dhaka-4 lane-2/2008-462 dated 7.7.2008. Violating the Rules, 2008, respondent No. 2 gave 7(seven) days’ time instead of 28 days for submission of performance guarantee. As a result, the Government rightly cancelled the tender. According to the Rules, 2008, Procuring Entity floats tender, TEC evaluates and recommends on the Tender and send its opinion to the Head of the Procuring Entity (shortly, HOPE) and thereafter, HOPE sends the evaluation report to the Ministry with its comments.  The Ministry reserves the right to make comments on the recommendation of the HOPE. The Ministry of Communication examined and scrutinized all the facts and found deviation of the Rules, 2008. Accordingly, it cancelled the tender and directed respondent No. 2 for re-tender. Rule 102(7) of the Rules, 2008 clearly stipulates that for international tender, the successful tenderers shall be allowed to submit the performance guarantee within 28 days. But in violation of the Rules, 2008, the Procuring Entity gave 7 (seven) days’ time for submission of performance guarantee. Therefore, the Ministry rightly cancelled the recommendations of the TEC and directed respondent No. 2 to invite re-tender. The replacement of 28 days by 7 days for submission of performance guarantee is a clear violation of Rule 102(7) of the Rules, 2008. In fact, the Government took the decision rightly as per the Rules, 2008. The petitioners have not acquired any vested right and as such, they are not the aggrieved persons to file the instant Writ Petitions. For the reasons stated, the Rules are liable to be discharged.

The petitioners also filed affidavit-in-reply against the affidavit-in-opposition filed by respondent No. 3. In that affidavit-in-reply the petitioners stated that they did not violate the Act, 2006 or the Rules, 2008. Respondent No. 1, the Ministry of Communication had no authority to cancel the tender of the project. On the contrary, under Rule 33 of the Rules, 2008, the Procuring Entity is authorized to cancel the tender if such cancellation is recommended by the TEC.

Mr. Rokanuddin Mahmud and Mr. Tanjib-ul Alam, learned Advocates appeared on behalf of the Writ Petition Nos. 5404 of 2008, 5405 of 2008, 5406 of 2008 and 5408 of 2008. Mr. Rokanuddin Mahmud  submits that the Ministry of Communication did not have the authority to cancel the tender as the TEC recommended acceptance of the tender. He further submits that the authority can cancel the tender if one of the conditions of Rule 33 of the Rules, 2008 is violated. He again submits that in the instant case none of the conditions of the Rule 33 of the Rules, 2008 was violated and as such cancellation of the tender was illegal. He also submits that considering all aspects, the TEC recommended acceptance of the tender, but without forwarding the report of the TEC to the purchase committee, the Ministry of Communication most illegally cancelled the tender. He lastly submits that such cancellation of tender by the Ministry of Communication is a flagrant violation of the Rules, 2008 and the Act, 2006 and as such, the impugned order is bad in law and can not sustain in law.

Mr. Fida-M-Kamal and Mr. Tanjib-ul Alam, learned Advocates appeared on behalf of the petitioner of Writ Petition No. 5407 of 2008. Mr. Fida-M-Kamal adopt the submissions of Mr. Rokanuddin Mahmud and adds that as per clause 34.1 of the tender documents, the Procuring Entity reserves the right to cancel the tender and that the Ministry of Communication did not have the authority to cancel the same.

Mr. Salauddin, learned Attorney General appearing on behalf of respondent No. 3, submits that according to the tender documents, the Government reserves the right to accept or cancel any of the tenders without assigning any reason. He refers to clause 34.1 of the tender and submits that the Procuring Entity reserves the right to cancel the tender and that the Chief-Engineer of the Road and Highways being the Procuring Entity reserves the right to cancel the same. He again submits that there has been a flagrant violation of the Rules, 2008 and that the Act. 2006. He also submits that the authority did not issue any work order in favour of the petitioners and that the petitioners did not acquire any vested right. He lastly submits that as the petitioners did not acquire any vested right they cannot maintain the instant Writ Petitions and, as such the Rules are liable to be discharged.

We have perused the Writ Petitions, its annexures, supplementary affidavits, its annexures, affidavit-in-reply, its annexures and affidavit-in-opposition and its annexures.  

It appears that in response to an international tender for pre-qualification published in various newspapers on 29.10.2005, the petitioners submitted their proposals for pre-qualification to participate in the bidding process of 4-lanning of Dhaka-Chittagong High Way Project. By a letter dated 10.3.2008, respondent No. 3 informed the petitioners that they (petitioners) qualified to participate in the bidding of the project and that they (petitioners) were invited to submit sealed tenders. The Ministry of Communication directed respondent Nos. 2 and 3 to follow the Rules, 2008 and the Act, 2006.

It is true that Dhaka-Chittagong main road is one of the busiest highways in Bangladesh and that it is the only route connecting Dhaka and Chittagong. The importers and the exporters use the highway to deliver the goods to and from Chittagong and Dhaka. The highway is also used to interconnect Chittagong and Dhaka with Comilla and Feni. But because of single lane, this highway has been considered extremely dangerous and as such, the Government considering the urgency of 4-lanning the highway undertook a project and invited tender from the prospective bidders. In total, 18 persons participated in the pre-qualification biding. Of 18, 5 were foreigners, 10 local and 3 joint venture. The pre-bid meeting held on 8.4.2008. The authority informed the petitioners that they were qualified in the pre-bid. The petitioners attended the tender opening ceremony. The documents were sent to the TEC which after due deliberation and consideration of the proposals submitted by the bidders found the tenders of the petitioners competitive and responsive. Accordingly, the TEC recommended to take further necessary steps. Considering the TEC report, respondent No. 2 recommended that the Ministry of Communication was to take necessary steps and award the tender to the successful bidders. When the petitioners were eagerly waiting for the notification of award, the Ministry of Communication all on a sudden, cancelled the tender on the ground that instead of giving 28 days for submission of performance guarantee, the authority gave 7(seven) days’ for the same. The petitioners challenged this action of the Ministry of Communication.  
We find that the petitioners mainly challenged the action of the Ministry of Communication. The learned Advocate for the petitioners contended that the Ministry had no jurisdiction to cancel the tender. It appears from the record that the Ministry of Commu-nication cancelled the tender primarily on the ground that there had been a violation of the Rules, 2008 and that the Act, 2006. The Procuring Entity did not allow the tenderers 28 days time for submission of performance guarantee as provided in the Rules, 2008 and the Act, 2006. Violating the Rules, 2008 and the Act, 2006, the Procuring Entity gave the tenderers only 7(seven) days time instead of 28 days.

Admittedly, the estimated cost of the project is over Tk. 55 crore. So, the power of acceptance of the tender lies with the Cabinet Division (Purchase and Economic Section). When the question arose whether the Ministry of Communication had jurisdiction to cancel the tender, the Cabinet Division formed a 2-member committee to enquire into the matter.

The notification issued by the Cabinet Division (Purchase and Economic Section) reads as follows.  

গণপ্রজাতন্ত্রী বাংলাদেশ সরকার
মন্ত্রী পরিষদ বিভাগ
ক্রয় ও অর্থনৈতিক শাখা
প্রজ্ঞাপন
ঢাকা, ০৭ আগষ্ট, ২০০৮/২৩ শ্রামন, ১৪১৫
 
নং-মপবি/শা-ক্রঃঅঃ/ক্রয়-২০/২০০৮-৩৪৭ ঢাকা-চট্রগগ্রাম মহাসড়ক ৪ লেনে উন্বীতকরণ প্রকল্প (দাউদকান্দি-চট্রগ্রাম অংশ) সড়ক নির্মান কাজের দরপত্র দলিলে পাবলিক প্রকিউরমেন্ট অ্যাক‘ট-২০০৬ এর  ধারা ১৪(খ) এবং পাবলিক পকিউরমেন্ট রুলস-২০০৮ এর ১০২(৭) বিধির ব্যত্যয় ঘটিয়ে কার্যসম্পাদন জামানত দাখিলের সময়সীমা ২৮ দিনের পরিবর্তে ৭ দিন করার কারনে সড়ক ও রেলপথ বিভাগ কর্তৃক গত ৭-৭-২০০৮  তরিখের উন্নয়ন-১/ঢাচ-৪ লেন-২/২০০৮-৪৬২ নং স্বারকমুলে দরপএটি পূণঃ প্রক্রিয়াকরণের জন্য সড়ক ও জনপথ অধিদপ্তরকে নির্দেশদেয়া হয়। কার্যসম্পাদন জামানত দাখিলের সময়সীমা ২৮ দিনের পরিবর্তে ৭ দিন রাখার কারণে পিপিএ-২০০৬ ও পিপিআর-২০০৮ এর কোন ব্যত্যয় ঘটেছে কিনা, ঘটলে তার পুনরাবৃত্তি কিভাবে হয়েছে এবং কোন প্রেক্ষিতে যথাযথ কর্তৃপক্ষেও অনুমোদন ব্যতিরেকে পূণঃ টেন্ডরের আদেশ দেয়া হয়েছে তার দায়-দায়িতবব নিরুপন করে একটি প্রতিবেদন আগামী ২(দুই) সপত্মাহের মধ্যে মমিএপরিষদ বিভাগে প্রেরনের  জন্য সরকার দুই সদস্যবিশিষ্ট নিম্নরুপ তদন্ত কমিটি গঠন করছেঃ-

(ক) কমিটির গঠনঃ-
(১) জনাব এ, এম, এম, নাসিরউদ্দিন       সদস্য
     সদস্য (ভৌত অবকাঠামো), পরিকল্পনা কমিশন
(২) জনাব আব্দুস সোবহান শিকদার        সদস্য
     ভারপ্রাপত্ম সচিব, বাস্তবায়ন পরিবীক্ষন ও মূল্যায়ন বিভাগ

(খ) কমিটির কার্যপরিধিঃ-
(১) কার্যসম্পাদন জামানত দাখিলের সময়সীমা ২৮ দিনের পরিবর্তে ৭ (সাত) দিন রাখার কারনে পিপিএ-২০০৬ এবং পিপিআর-২০০৮ এর কোনরুপ ব্যত্যয় ঘটেদে কিনা এবং ঘটলে পূনঃ পূনঃ কিভাবে তা হয়েছে উক্ত তথ্য উদঘাটন এবং দায়ী ব্যক্তিদের সনাক্তকরণ ।
(২) তদুপরি কোন প্রেক্ষিতে যথাযথ কর্তৃপক্ষেও অনুমোদন ব্যতিরেকে সড়ক ও রেলপথ বিভাগ কর্তৃক সড়ক ও জনপথ অধিদপ্তরকে পূনঃ টেন্ডারের আদেশ দেয়া হয় তা নিরুপন।
(৩) দরপএ দলিল ও দরপত্র প্রক্রিয়ায় কোন ধরনের ক্রটি/বিচ্যুতি রয়েছে কনা তা নির্ধারণ।

(গ) তদনত্ম সংক্রান্ত কাজে বাস্তবায়ন পরিবীক্ষন ও মূল্যায়ন বিভাগ এ কমিটিকে সচিবিক সহযোগিতা প্রদান করবে । 
রাষ্টপতির আদেশক্রমে
স্বাঃ/ অস্পষ্ট ৭-৮-২০০৮
(মোঃ মতিয়ার রহমান )
যুগ্ম সচিব (কমিটি ও উনলয়ন)
(Emphasis Supplied)
 
From the above notification, we find that the Cabinet Division (Purchase and Economic Section) formed a 2-member committee to enquire into the following matters:-
  1. The Procuring Entity gave 7(seven) days time to the successful bidders to submit performance guarantee instead of 28 days. Whether this action of the Procuring Entity was violative of the Rules, 2008 and the Act, 2006.
  2. Under what circumstances the Ministry of Communication cancelled the Tender and passed the order for fresh tender and whether the order of the Ministry was legal or not.
The enquiry committee thoroughly enquired into the matter and submitted its report. It supplied a detailed questionire to the Project Director. After enquiry, it submitted its report to the Cabinet Division. The enquiry committee in its report addressed the issue of whether the Rules, 2008 and the Acts, 2006 were violated or not and whether the cancellation of the tender by the Ministry of Communication was legal or not. But the Cabinet Division did not have the occasion to consider the report submitted by the enquiry committee. In fact, the Cabinet Division (Purchase and Economic Section) is in seisin of the matter. But the Cabinet Division is yet to give its decision on the matter. We are of the opinion that the Cabinet Division should be allowed to give its decision on the matter. The Cabinet Division is competent enough to consider whether the Rules, 2008 and the Act, 2006 were violated or not and whether the Ministry of Communiction acted legally or not in cancelling the tender and directing fresh tender. Since the Cabinet Division is in the seisin of the matter, we are, reluctant to interfere with the matter. Rather, we, are, inclined to direct the Cabinet Division to consider the report submitted by the 2-member committee and give its decision whether there has been any violation of the Rules, 2008 and the Act, 2006 and whether cancellation of tender and direction for fresh tender by the Ministry of Communication were legal or not. We, therefore, direct the Cabinet Division to give its decision on the above matters.

In the light of the findings made before, the Rules are disposed of.

The Cabinet Division (Purchase and Economic Section) is directed to dispose of the matter in the light of the observation made above and also in accordance with law.

Considering the urgency of the project, the Cabinet   Division is also directed to give its decision as expeditiously as possible.

There is no order as to costs.
     
Ed.