DIENCO Ltd. Vs. Bangladesh and others, (Moyeenul Islam Chowdhury, J.)

Case No: Writ Petition No. 13068 of 2017

Judge: Moyeenul Islam Chowdhury, J And J. B. M. Hassan, J

Court: High Court Division,

Advocate: Mr. Shafique Ahmed with Mr. M. Shamsul Haque and Mr. Mahbub Shafique, Advocates,

Citation: 2019(1) LNJ

Case Year: 2017

Appellant: DIENCO Limited

Respondent: Bangladesh represented by the Secretary, Road, Transport and Highways Division, Ministry of Road, Transport and Bridges, Bangladesh Secretariat, Shahabagh, Dhaka and others

Subject: Public Procurement Act

Delivery Date: 2019-11-26

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Moyeenul Islam Chowdhury, J

And

J. B. M. Hassan, J.

 

Judgment on

19.11.2017

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DIENCO Limited

. . .Petitioner

-Versus-

Bangladesh represented by the Secretary, Road, Transport and Highways Division, Ministry of Road, Transport and Bridges, Bangladesh Secretariat, Shahabagh, Dhaka and others

. . .Respondents

Public Procurement Act (XXIV of 2006)

Sections 3(2) (gha) and 4

From the provisions of Section 3(2)(gha) and Section 4 of the PPA of 2006, it is palpably clear that unless the proviso to Section 3(2)(gha) applies to any bidding process, the PPA of 2006 and the PPR of 2008 will be applicable thereto. Whether the proviso to Section 3(2)(gha) is applicable to the SASEC Road Connectivity Project-II. The proviso that Z‡e kZ© _v‡K †h, m¤úvw`Z †Kvb Pzw³i k‡Z© wfbœZi wKQy _vwK‡j D³ Pzw³i kZ© cÖvavb¨ cvB‡eÓ imples us to examine the Loan Negotiation Document entered into between the Government of the People’s Republic of Bangladesh (borrower) and the development partner (ADB). In this connection, it may be recalled that the Loan Negotiation Documents for the SASEC Road Connectivity Project-II is based upon the User’s Guide to Procurement of Works. The User’s Guide to Procurement of Works issued by the ADB in December, 2016 is meant for the user, that is to say, the Roads and Highways Department in this case. Section 1.02 of Article 1 of the Loan Negotiation Document provides that wherever used in this Loan Agreement, the several terms defined in the Loan Regulations have the respective meanings therein set forth unless modified herein or the context otherwise requires and additional terms used in this Loan Agreement have the meaning of “procurement Guidelines” means ADB’s Procurement Guidelines (2015), as amended from time to time. So it is seen that with regard to the SASEC Road Connectivity Project-II, instead of the PPA of 2006 and the PPR of 2008, the Procurement Guidelines of the ADB, 2015 (as amended from time to time) will be applicable. Again in the ADB’s Procurement Guidelines of 2015, it has been clearly, categorically and unequivocally stated under the sub-caption “Purpose” of the caption “Introduction” that “the rights and obligations of the borrower and the providers of goods and works for the project are governed by the bidding documents, and by the contracts signed by the borrower with the providers of goods and works, and not by these Guidelines or the financing agreements”. So it is ex-facie clear that the right and obligations of the borrower and the providers of goods and works for the project shall be governed by the bidding documents as well as by the contracts entered into between the borrower and the providers of goods and works. Precisely speaking, in the absence of any contract signed between the borrower and any of the bidders, the bidding document shall come into play and consequentially it will play a pivotal role in the bidding process. What we are driving at boils down to this; the ADB’s Procurement Guideline of 2015 have opted for self-exclusion and self-effacement in view of the “Purpose” set forth therein. In a mega development project, the High Court Division is often confronted with public interest vis-à-vis private interest of the writ petitioner. The petitioner-company has a private interest in the matter of execution of the project, if eventually the contract is awarded thereto. Regard being had to the public interest in general, can the Court disregard the private interest of the petitioner-company? According to us, in a case of this nature, the High Court Division is required to strike a balance between public interest and private interest. It goes without saying that the public interest involved in the case mega project far outweighs the private interest of the petitioner-company. Where the public interest is predominant, the private interest  of the petitioner-company takes a back seat. There cannot be any iota of doubt thereabout. It is admitted on all hands that our local construction companies do not have much skill, expertise and technical know-how in carrying out such mega development projects like the SASEC Road Connectivity Project-II. So the skill, expertise and technical know-how of the local construction companies including the petitioner-company must be raised to an international standard. In this regard, both the Government of the People’s Republic of Bangladesh and various development partners including the ADB have a stake. Unless the local construction companies acquire the competence of the international standard as enumerated above, they will lag far behind the foreign companies in the execution of massive development projects. In such a situation, we think, a duty is cast upon the Government and the development partners to ensure that the interest of the local companies is protected and their skill, expertise and technical know-how are enhanced to the international level facilitating them to submit international bids single-handed for such large-scale procurement works. However, from the materials on record, we do not find any mala fides or bad faith in the matter of issuance of the impugned clarification dated 05.09.2017 and as such the same can not be dubbed mala fide as argued by Mr. Mahbub Shafique. Accordingly the Rule is discharged.

. . . ( 33 to 36 and 55 to 58)

Mr. Shafique Ahmed with

Mr. M. Shamsul Haque and

Mr. Mahbub Shafique, Advocates

. . . For the petitioner

Mr. Khaled Hamid Chowdhury, Advocate

. . . For the respondent No. 1

Mr. S. M. Zahurul Islam with

Mr. Md. Mizanur Rahman, Advocates

. . . For the respondent no. 3.

JUDGMENT

Moyeenul Islam Chowdhury, J:  On an application under Article 102 of the Constitution of the People’s Republic of Bangladesh filed by the petitioner, a Rule Nisi was issued calling upon the respondents to show cause as to why the Memo No. 35.RHD.0000.PDSASEC-II.14.001.2017-219 dated 05.09.2017 issued by the respondent no. 4 providing Clarification of Clause 2.4.1 (Contracts of Similar Size and Nature) Evaluation and Qualification Criteria, Section 3, Volume 1 of 5 of the Bidding Document For WP 05 and WP 06 by way of declaration that only the respective percentage of the bidder’s share in a Joint Venture (JV) would be considered (Annexure- ‘F’ to the Writ Petition) in contravention of Rule 54(4) of the Public Procurement Rules, 2008 should not be declared to be without lawful authority and of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.

2.             The case of the petitioner, as set out in the Writ Petition, in short, is as follows:

(i)     The petitioner is a well-reputed construction company engaged in constructing Highway Roads and Bridges all over the country. However, the respondent no. 4 vide Memo No. 35.RHD.0000.PDSASEC-II.07.004.2017-50 dated 20.07.2017 published an Invitation For Bids for ICB No. SASEC-II/ICB/MP-1/WP 05 (LOT 1) and ICB No. SASEC-II/ICB/MP-1/WP 06 (LOT 2) under Project No. 40540-BAN: South Asia Sub-regional Economic Co-operation (SASEC) Dhaka-Northwest Corridor Road Project, Phase 2. On 16.08.2017, the petitioner-company, that is to say, DIENCO LIMITED entered into two separate Joint Venture (JV) Agreements with HALLA Corporation of 289, Olympic-ro, Songpa-gu, Seoul, South Korea under the name and style HALLA-DIENCO JV in order to participate in the aforementioned two bids. Thereafter the HALLA-DIENCO JV vide two separate Powers of Attorney dated 16.08.2017 authorized the petitioner’s Managing Director Mr. S. M. Khorshed Alam to carry out all the works under the project. In due course, the HALLA-DIENCO JV purchased the bid documents by depositing the required amount of money. There is a Clause being No. 2.4.1 (Contracts of Similar Size and Nature) Evaluation and Qualification Criteria, Section 3, Volume 1 of 5 of the Bidding Document For WP 05 and WP 06 concerning previous work experience. A pre-bid meeting was held on 23.08.2017 at the office of the respondent no. 3 where all sorts of questions and queries were thrashed out regarding the bids. The petitioner’s Managing Director being the authorized person of HALLA-DIENCO JV participated in the pre-bid meeting. Although in the pre-bid meeting held on 23.08.2017, there was no discussion whatsoever regarding the Clause 2.4.1 (Contracts of Similar Size and Nature) Evaluation and Qualification Criteria; yet the respondent no. 4 most illegally and with a mala fide intention, by the impugned Memo No. 35.RHD.0000.PDSASEC-II.14.001.2017-219 dated 05.09.2017, provided a clarification on the said Clause 2.4.1 in contravention of Rule 54(4) of the Public Procurement Rules, 2008 (hereinafter referred to as the PPR of 2008) and thereby restricted the scope for local contractors to participate in the bids. Anyway, the petitioner by two representations dated 06.09.2017 addressed to the respondent nos. 3 and 4 respectively and by another representation dated 07.09.2017 addressed to the respondent no. 2 requested them to consider the experience of any partner of the JV as 100%, not on the basis of its share in the JV. But the respondents did not pay any heed thereto. In view of the provisions of Rule 54(4) of the PPR of 2008, the petitioner is eligible to get full experience irrespective of its share in the JV, even then the respondent no. 4 by the impugned clarification dated 05.09.2017 unlawfully stated that only the respective share of the JV partner would be considered in assessing the previous experience. Moreover, the Central Procurement Technical Unit (CPTU) vide Memo No. BCHjC¢X/¢p¢f¢VCE/ja¡ja(f§aÑ L¡S) /122/2009/1346 dated 26.11.2009 opined concerning the previous experience acquired through the JV that it would be reasonable if the experience of each partner of the JV is determined as 100% experience in procurement of any work. Hence the petitioner is eligible to get full experience irrespective of its share in the JV.

(ii)   Previously the petitioner participated in another bid and obtained notification of award in a similar project under the respondent no. 1, namely, SASEC Road Connectivity Project: Improvement of Joydebpur-Chandra-Tangail-Elenga Road (N-4) to a 4-Lane Highway having ICB No. SASEC-RCP-ICB/W-02, LOT No. WP-04 whereof the bid document contained exactly the similar qualification criteria in Clause 2.4.1 and the respondent no. 4 vide Memo No. 35.RHD.0000.SASECPD.06. 001.2013-810 dated 10.09.2017 accepted 100% experience of the JV partner as work experience disregarding the share of each partner in the JV. In another similar project named Western Bangladesh Bridge Improvement Project (WBBIP) under the respondent no. 1, the prospective bidder was required to have a minimum number of 2 similar contracts that had been satisfactorily completed as a prime contractor (single entity or JV member) and it was stated in the Bidding Document that for contracts under which the applicant participated as a JV member, the applicant would be eligible to get full experience of contracts regardless of the JV share in assessing the Specific Construction Experience 4.2. So in all fairness, in the present SASEC Road Connectivity Project-II, the experience of the petitioner should have been assessed as 100% experience in the JV irrespective of its share. The impugned clarification dated 05.09.2017 is a material departure in this regard. As the impugned clarification dated 05.09.2017 was issued in violation of Rule 54(4) of the PPR of 2008 and the CPTUs Memo No. BCHjC¢X/¢p¢f¢VCE/ja¡ja(f§aÑ L¡S)/122/2009 /1346 dated 26.11.2009, the same is clearly without lawful authority and of no legal effect.

(iii) In the Supplementary Affidavit filed on behalf of the petitioner, it has been averred that although the SASEC Road Connectivity Project-II will be financed by the Asian Development Bank (ADB), yet all the tender proceedings will be regulated by the Public Procurement Act, 2006 (hereinafter mentioned as the PPA of 2006) and the PPR of 2008. In view of Section 3(2)(gha) of the PPA of 2006, the provisions of the PPA of 2006 will be applicable in respect of procurement of any works or supplies by the Procuring Entity and the proviso to Section 3(2)(gha) of the PPA of 2006 is not applicable to the instant SASEC Road Connectivity Project-II. Besides, in view of the non-obstante clause in Section 4 of the PPA of 2006, the entire bidding process will be governed and regulated by the PPA of 2006 and the PPR of 2008. As there is no provision that the experience of the JV partners shall be considered according to their respective shares, the impugned clarification dated 05.09.2017 is ex-facie illegal.

(iv)  It may be mentioned that the clarification was sought for by Infratech Construction Company Limited on 30.08.2017 after the pre-bid meeting was held on 23.08.2017. This clarification /question ought to have been raised before the pre-bid meeting as per law. After holding of the pre-bid meeting on 23.08.2017, no new condition/stipulation can be attached so that any of the bidders may become non-responsive. The impugned clarification dated 05.09.2017 has virtually curtailed the right of the petitioner-company to participate in the bidding process in the JV. In the impugned clarification, the expression “Bidder’s Participation” has wrongly been interpreted. The value of the bidder’s participation means the value of the total work. But in the impugned clarification, the value of the bidder’s participation has been defined as value of the share of the JV partners which is clearly misleading and untenable. Experience is a qualitative issue and it is not to be quantified. This impugned clarification is not a part of the ADB Guidelines. It is a mere clarification given by some individuals in order to gratify their evil desire. If the impugned clarification dated 05.09.2017 remains in force, no skilful and experienced contractors will be groomed in this country. In that event, all the local construction companies shall have to be necessarily dependent upon foreign companies sine die to the grave prejudice of the construction industry of Bangladesh.

3.             Both the respondent nos. 1 and 3 have contested the Rule by submitting 2(two) separate Affidavits-in-Opposition. Their case, in brief, runs as under:

(i)     In the pre-bid meeting held on 23.08.2017, there was no discussion regarding the clarification of the Clause 2.4.1 (Contracts of Similar Size and Nature) Evaluation and Qualification Criteria. As the Clause 2.4.1 was not clarified in the pre-bid meeting, the employer can clarify it at any time before submission of bids. Instruction to Bidders (ITB) 8.1 provides that at any time prior to the deadline for submission of bids, the employer may amend the bidding documents by issuing addenda. So the employer rightly clarified the Clause 2.4.1 (Contracts of Similar Size and Nature) Evaluation and Qualification Criteria. Furthermore, the PPR of 2008 are not applicable to the instant case and as such there is no question of violation of Rule 54(4) of the PPR of 2008. The petitioner requested the respondent nos. 3 and 4 to reconsider the experiences of the partners of the JV as 100%. The ADB is only the forum to review this issue. The respondent nos. 3 and 4 have no authority to review the same. In the present case, only the ADB’s Procurement Guidelines are applicable and that being so, the petitioner can not claim full experience irrespective of its share in the JV. The CPTU has been established by the Implementation, Monitoring and Evaluation Division of the Ministry of Planning for carrying out the purpose of the PPA of 2006 and the PPR of 2008. As the PPA of 2006 and the PPR of 2008 are not applicable to the instant case, the opinion of the CPTU is immaterial and irrelevant. The ADB reserves the right to change its policy which can not be challenged under the law of the land. According to the impugned clarification dated 05.09.2017, there is no scope to give 100% experience to the lead partner (petitioner-company) and only the respective share of the partner will be considered. As per Clause “u” of Section 1.02 of Article 1 of the Loan Negotiation Document dated 12.07.2017 executed between the representative of the Government of the People’s Republic of Bangladesh and the ADB, “Procurement Guidelines” means the ADB’s Procurement Guidelines of 2015, as amended from time to time. Schedule 4 of the Loan Negotiation Document provides that the procurement of goods, works and consulting services shall be subject to and governed by the Procurement Guidelines and the Consulting Guidelines respectively. Except as the ADB may otherwise agree, goods and works shall be procured and consulting services shall be selected and engaged only on the basis of the procurement method(s) and the selection methods set forth in that Schedule 4. These methods are subject to, among other things, the detailed arrangements and threshold values mentioned in the procurement plan. The borrower may only modify the procurement and selection methods or threshold values with the prior agreement with the ADB and the modifications must be set out in the updates to the procurement plan. All terms used in the Schedule 4 and not otherwise defined in the Loan Negotiation Document have the meanings provided in the Procurement Guidelines and/or the Consulting Guidelines, as the case may be.

(ii)   The Government of the People’s Republic of Bangladesh and the ADB entered into an agreement for proposed Multitranche Financing Facility (MFF) for South Asia Sub-regional Economic Co-operation (SASEC) Dhaka-Northwest Corridor Road Project, Phase 2 and Tranche 1 (Project) on 12.07.2017. The maximum financing amount available under the Facility is one billion two hundred million US dollar. Each individual tranche will be for an amount of not less than fifty million US dollar or its equivalent. The respondent no. 4 (Project Director) invited bids on 20.07.2017 for Project No. 40540-BAN: South Asia Sub-regional Economic Co-operation (SASEC) Dhaka-Northwest Corridor Road Project, Phase 2. ICB No. and Title: SASEC-II/ICB/MP-1/WP 05 (LOT 1) and SASEC-II/ICB/MP-1/WP 06 (LOT 2); SASEC Road Connectivity Project-II for Improvement of Elenga-Hatikamrul-Rangpur Road to a 4-Lane Highway. The ADB endorsed the impugned clarification dated 05.09.2017 and as per the directive of the ADB, the Project Director informed all the bidders of the clarification. The ADB is the only body to give necessary clarification on any clause in the bidding document. In response to a query from one of the bidders, namely, Infratech Construction Company Limited, the ADB provided the clarification; but in the instant Writ Petition, the ADB has not been made a party. On 06.09.2017, the petitioner-company made a representation to the Country Director of the ADB for review of the clarification dated 05.09.2017; but without waiting for a reasonable time for the disposal of the review application by the ADB, the petitioner has filed the Writ Petition hurriedly. However, in view of the proviso to Section 3(2)(gha) of the PPA of 2006, the PPA of 2006 and the PPR of 2008 are not applicable to the SASEC Road Connectivity Project-II. In this respect, the Procurement Guidelines of the ADB hold the field. Accordingly the impugned clarification dated 05.09.2017 was given by the ADB following its Procurement Guidelines of 2015.

(iii) Both the respondent nos. 1 and 3 have filed separate Supplementary Affidavits-in-Opposition wherein they have stated that in this case, the Conditions of the Loan Negotiation Document, the Procurement Guidelines of the ADB, the User’s Guide to Procurement of Works and the Bidding Document are relevant for the purpose of determining the real questions in controversy between the parties. The petitioner challenged the clarification of the Clause 2.4.1 (Contracts of Similar Size and Nature) Evaluation and Qualification Criteria by filing this Writ Petition and obtained a Rule Nisi along with an interim order of stay. As against the interim order of stay, the respondent no. 3 preferred Civil Petition For Leave To Appeal No. 3547 of 2017 before the Appellate Division and the Appellate Division stayed the operation of the order of stay granted by the High Court Division; but in the meantime, that is to say, during the subsistence of the stay order passed by the Appellate Division, the respondents completed the technical evaluation of the bids. On 06.11.2017, the respondents sent the technical evaluation report to the Chief Engineer of the Roads and Highways Department (Head of the Procuring Entity) who duly transmitted the same to the ADB on 08.11.2017 for its concurrence. As the technical evaluation has already been completed, the Rule Nisi has necessarily become infructuous.

4.             Mr. Shafique Ahmed, learned Senior Advocate along with learned Advocates Mr. M. Shamsul Haque and Mr. Mahbub Shafique has appeared on behalf of the petitioner-company. On the other hand, learned Advocates Mr. Khaled Hamid Chowdhury and Mr. S. M. Zahurul Islam have appeared on behalf of the respondent nos. 1 and 3 respectively in this case.

5.             At the outset, Mr. Shafique Ahmed submits that the impugned clarification dated 05.09.2017 as evidenced by Annexure-‘F’ to the Writ Petition has virtually curtailed the right of the petitioner to participate in the tender process and the impugned clarification, in effect, amounts to altering the terms and conditions of the Bidding Document and given this perspective, the impugned clarification dated 05.09.2017 can not be sustainable in law.

6.             Mr. Shafique Ahmed also submits that the impugned clarification dated 05.09.2017 has effectively amended the Bidding Document, but this amendment must be in consonance with ITB 8 and as no addendum was issued in terms of ITB 8 of the Bidding Document, the impugned clarification dated 05.09.2017 falls apart as a natural corollary.

7.             Mr. Shafique Ahmed next submits that the SASEC Road Connectivity Project-II involves a two-envelope bidding procedure, namely, Technical Bid and Price Bid and the impugned clarification dated 05.09.2017 not being in the nature of any addendum has not formed a part of the Bidding Document and in such a posture of things, the impugned clarification dated 05.09.2017 as evidenced by Annexure-‘F’ to the Writ Petition is liable to be struck down.

8.             Mr. M. Shamsul Haque contends that in view of Section 3(2)(gha) and Section 4 of the PPA of 2006, the PPA of 2006 and the PPR of 2008 are clearly applicable to the present case and by that reason, the Procurement Guidelines of the ADB of 2015 as amended from time to time have no manner of application to the instant case.

9.             Mr. M. Shamsul Haque further contends that the impugned clarification dated 05.09.2017 was issued in flagrant violation of Rule 54(4) of the PPR of 2008 and the CPTU’s Memo No. BCHjC¢X/¢p¢f¢VCE/ja¡ja(f§aÑ L¡S)/ 122/2009/1346  dated 26.11.2009 as evidenced by Annexure-‘H’ to the Writ Petition and this being position, the impugned clarification dated 05.09.2017 is liable to be knocked down.

10.         Mr. M. Shamsul Haque next contends that although the petitioner-company made a review application before the ADB; yet under compelling circumstances, the petitioner-company had to file the instant Writ Petition on priority basis, regard being had to the urgency of the matter and the impending evaluation of the bids by the Tender Evaluation Committee and till date no response is forthcoming from the ADB on the review application filed by the petitioner.

11.         Mr. M. Shamsul Haque further contends that albeit the technical evaluation was completed as asserted by the contesting respondents on 06.11.2017; but nevertheless the tender process has not reached its finality as yet and in this view of the matter, it can not be said that the Rule has become necessarily infructuous with the submission of the technical evaluation report by the Tender Evaluation Committee and as such, the Rule is still competent.

12.         Mr. Mahbub Shafique argues by referring to the purpose of the ADB’s Procurement Guidelines of 2015 that the rights and obligations of the borrower and the providers of goods and works for the project are governed by the bidding documents, and by the contracts signed by the borrower with the providers of goods and works, and not by these Guidelines or the financing agreements and it is manifestly clear from the purpose of the ADB’s Procurement Guidelines that the rights and obligations of the respondents and the bidders shall be governed by the bidding document in the absence of any contract signed by the respondents with any of the providers of goods and works and on this question, the provisions of the Bidding Document are of signal importance which need elaboration and interpretation for the purpose of determination as to whether the challenge of the petitioner to the impugned clarification dated 05.09.2017 has any merit or not.

13.         Mr. Mahbub Shafique also argues that no such clarification as evidenced by Annexure-‘F’ to the Writ Petition was made by the Procuring Entity with regard to the SASEC Road Connectivity Project-I which is being implemented by the petitioner-company and in the present case, by issuance of the impugned clarification dated 05.09.2017, a clear-cut discrimination has been meted out to all the bidders including the petitioner-company.

14.         Mr. Mahbub Shafique next argues that in a similar project named Western Bangladesh Bridge Improvement Project (WBBIP) under the respondents no.1, no such clarification like the impugned one dated 05.09.2017 was made too and in both the earlier projects, namely, SASEC Road Connectivity Project-I and the Western Bangladesh Bridge Improvement Project, the bidders were eligible to get full experience of the contracts regardless of their shares in the JVs and by issuance of the impugned clarification dated 05.09.2017 as evidenced by Annexure-‘F’ to the Writ Petition, the petitioner-company has been put in a disadvantageous position to its great prejudice.

15.         Mr. Mahbub Shafique further argues that the impugned clarification dated 05.09.2017 was issued mala fide in order to protect some vested quarters and as it is a mala fide action of the respondents, it can not stand valid.

16.         Mr. Mahbub Shafique also argues that as the time-frame envisaged by ITB 7.1 of the Bidding Document was not adhered to, the impugned clarification dated 05.09.2017 was not issued lawfully and in this perspective, the impugned clarification ought to be thrown overboard.

17.         Mr. Mahbub Shafique lastly argues that the impugned clarification dated 05.09.2017 as evidenced by Annexure-‘F’ to the Writ Petition has dealt a fatal blow to the local construction companies and unless the local construction companies are nurtured and their skill, expertise and technical know-how are raised in association with foreign partners, the local construction companies will not be in a position to undertake massive development works funded by any development partner in the future and on this count, nurturing, sustenance and protection of the local construction companies are an imperative necessity.

18.         Per contra, Mr. S. M. Zahurul Islam submits that the Bidding Document for the SASEC Road Connectivity Project-II is predicated upon the User’s Guide to Procurement of Works and because of the proviso to Section 3(2)(gha) of the PPA of 2006, the ADB’s Procurement Guidelines, 2015 (as amended from time to time), the Loan Negotiation Document and the Bidding Document are to be considered with a view to arriving at a correct decision in this case.

19.         Mr. S. M. Zahurul Islam also submits that the contesting respondents have a lurking sympathy for the local construction companies including the petitioner-company and that being so, the respondent no. 3 pleaded in favour of the local construction companies as evidenced by Annexure-‘3’ to the Affidavit-in-Opposition filed by the respondent no. 3; but since it is an ADB-funded project, the ADB directed the respondent no. 4, that is to say, the Procuring Entity to issue the impugned clarification dated 05.09.2017 and accordingly the respondent no. 4 issued the same pursuant to the directive of the ADB.

20.         Mr. S. M. Zahurul Islam next submits that the initial deadline for submission of bids was 06.09.2017; but subsequently it was extended to 18.09.2017, but the pre-bid meeting was held on 23.08.2017 and the request for clarification of the Clause 2.4.1 made by Infratech Construction Company Limited was not made beyond 21(twenty-one) days prior to expiry of the deadline for submission of bids, that is to say, 18.09.2017 and as the request for clarification was not made within the time-frame as contemplated by ITB 7.1, the employer was not under any legal obligation to make any clarification; but none the less, the employer made the impugned clarification dated 05.09.2017 for the purpose of facilitating the comprehension of all the issues involved and for submission of bids in a proper manner.

21.         Mr. S. M. Zahurul Islam also submits that the time-frame given in ITB 7.1 of the Bidding Document of the SASEC Road Connectivity Project-II is not mandatory inasmuch as non-compliance therewith does not entail or lead to any consequence and considered from this angle, it can not be said at all that the impugned clarification dated 05.09.2017 is illegal.

22.         Mr. S. M. Zahurul Islam further submits that the employer did not think it expedient or desirable to make the impugned clarification in the form of an addendum and had the employer thought so, he would have definitely made an addendum and the addendum so made would have formed a part of the Bidding Document by having recourse to ITB 8.

23.         Mr. S. M. Zahurul Islam also submits that indisputably the petitioner-company made a review application before the ADB for review of the impugned clarification dated 05.09.2017 and while the review application was admittedly pending before the ADB, the petitioner-company filed the instant Writ Petition posthaste without waiting for a reasonable time for its disposal and in view of the order rendered by the Appellate Division staying the operation of the interim order of stay granted by the High Court Division in Civil Petition For Leave To Appeal No. 3547 of 2017, the respondents were at liberty to evaluate the technical bids and accordingly the Tender Evaluation Committee evaluated the bids and made the technical evaluation report on 06.11.2017 which was ultimately sent to the ADB on 08.11.2017 for its concurrence.

24.         Mr. S. M. Zahurul Islam further submits that every project is a class by itself and that being so, it can not be said that any discriminatory treatment has been meted out to the petitioner-company for non-issuance of any such clarification dated 05.09.2017 as regards the SASEC Road Connectivity Project-II and the Western Bangladesh Bridge Improvement Project (WBBIP).

25.         Mr. S. M. Zahurul Islam next submits that undeniably the SASEC Road Connectivity Project-II is an ADB-funded project and since it is an ADB-funded project, the ADB has necessary control, supervision and oversight over the project and the Project Director did not issue the impugned clarification dated 05.09.2017 of his own volition; rather the ADB interposed and directed the Procuring Entity to issue the impugned clarification and as such the contesting respondents were left with no option but to issue the impugned clarification dated 05.09.2017 as evidenced by Annexure-‘F’ to the Writ Petition.

26.         Mr. S. M. Zahurul Islam lastly submits that the SASEC Road Connectivity Project-II is a priority mega development project and obviously it has been undertaken in public interest and this is why, it is the obligation of the respondents to ensure that the project is implemented without any hitch.

27.         Mr. Khaled Hamid Chowdhury, appearing for the respondent no. 1, has adopted the submissions advanced by Mr. S. M. Zahurul Islam.

28.         We have heard the submissions of the learned Advocates, namely, Messrs. Shafique Ahmed, M. Shamsul Haque and Mahbub Shafique for the petitioner-company and the counter-submissions of the learned Advocate Mr. S. M. Zahurul Islam for the respondent no. 3 and perused the Writ Petition, Supplementary Affidavit, Affidavits-in-Opposition, Supplementary Affidavits-in-Opposition and relevant Annexures annexed thereto.

29.         It is admitted that the Government of the People’s Republic of Bangladesh and the ADB entered into a negotiation for proposed Multitranche Financing Facility (MFF) for South Asia Sub-regional Economic Co-operation (SASEC) Dhaka-Northwest Corridor Road Project, Phase 2 and Tranche 1 (Project) on 12.07.2017. The maximum financing amount available under the Facility is one billion two hundred million US dollar as evidenced by Annexure-‘1’ to the Affidavit-in-Opposition filed by the respondent no. 3. It is further admitted that the respondent no. 4 (Procuring Entity) vide Memo No. 35.RHD.0000.PDSASEC-II.07.004.2017-50 dated 20.07.2017 published an Invitation For Bids for ICB No. SASEC-II/ICB/MP-1/WP 05 (LOT 1) and ICB No. SASEC-II/ICB/MP-1/WP 06 (LOT 2) under Project No. 40540-BAN: SASEC Road Connectivity Project-II for Improvement of Elenga-Hatikamrul-Rangpur Road to a 4-Lane Highway as evidenced by Annexure-‘B’ to the Writ Petition. It is also admitted that the technical evaluation report was already prepared by the Tender Evaluation Committee on 06.11.2017 and the same was sent to the ADB on 08.11.2017 for its concurrence. The evaluation of the technical bids of the bidders is one of the stepping-stones in the formal bidding process. The SASEC Road Connectivity Project-II is undoubtedly one of the mega development projects of Bangladesh funded by one of its development partners, namely, ADB and this mega project, it is needless to say, has been undertaken in great public interest for the overall development of Bangladesh.

30.         According to the submission of the learned Advocate Mr. M. Shamsul Haque, in view of Section 3(2)(gha) of the PPA of 2006, the PPA of 2006 and the PPR of 2008 are applicable to the bidding process of the instant project. But on that contrary, it is the submission of the learned Advocate Mr. S. M. Zahurul Islam that regard being had to the proviso to Section 3(2)(gha) of the PPA of 2006, the ADB’s Procurement Guidelines of 2015 (as amended from time to time) will hold the field, in so far as the present tender process is concerned and in that view of the matter, the question of applicability of the PPA of 2006 and the PPR of 2008 to the instant tender process is out of the question. To begin with, this moot question must be answered.

31.         Section 3(2)(gha) of the PPA of 2006 is as under:

3z fË­u¡N J fË­k¡SÉa¡z-...

(2) HC BCe ¢ejÀh¢ZÑa ®r­œ fË­k¡SÉ qC­h, kb¡x-

(L) ...

(M) ...

(N) ...

(O) ®L¡e Eæue pq­k¡N£, ¢h­cn£ l¡ÖVÊ h¡ pwØq¡l p¢qa plL¡­ll pÇf¡¢ca ®L¡e GZ, Ae¤c¡e h¡ AeÉ ®L¡e Q¥¢š²l Ad£e ®L¡e fZÉ, L¡kÑ h¡ ®ph¡ œ²ux

a­h naÑ b¡­L ®k, pÇf¡¢ca ®L¡e Q¥¢š²l n­aÑ ¢iæal ¢LR¤ b¡¢L­m Eš² Q¥¢š²l naÑ fË¡d¡eÉ f¡C­hz

32.         Again Section 4 of the PPA of 2006 has been couched in the following terms:

4z BC­el fË¡d¡eÉz- AeÉ ®L¡e BC­e ¢iæal k¡q¡ ¢LR¤C b¡L¥L e¡ ®Le, HC BC­el ¢hd¡e¡hm£ L¡kÑLl qC­hz

33.         From the above provisions of Section 3(2)(gha) and Section 4 of the PPA of 2006, it is palpably clear that unless the proviso to Section 3(2)(gha) applies to any bidding process, the PPA of 2006 and the PPR of 2008 will be applicable thereto.

34.         Reverting to the case in hand, we are to ascertain as to whether the proviso to Section 3(2)(gha) is applicable to the SASEC Road Connectivity Project-II. The proviso that “a­h naÑ b¡­L ®k, pÇf¡¢ca ®L¡e Q¥¢š²l n­aÑ ¢iæal ¢LR¤ b¡¢L­m Eš² Q¥¢š²l naÑ fË¡d¡eÉ f¡C­h” impels us to examine the Loan Negotiation Document entered into between the Government of the People’s Republic of Bangladesh (borrower) and the development partner (ADB). In this connection, it may be recalled that the Loan Negotiation Document for the SASEC Road Connectivity Project-II is based upon the User’s Guide to Procurement of Works. The User’s Guide to Procurement of Works issued by the ADB in December, 2016 is meant for the user, that is to say, the Roads and Highways Department in this case.

35.         Section 1.02 of Article 1 of the Loan Negotiation Document provides that wherever used in this Loan Agreement, the several terms defined in the Loan Regulations have the respective meanings therein set forth unless modified herein or the context otherwise requires and additional terms used in this Loan Agreement have the following meanings:

“…

(u) “Procurement Guidelines” means ADB’s Procurement Guidelines (2015, as amended from time to time).”

36.         So it is seen that with regard to the SASEC Road Connectivity Project-II, instead of the PPA of 2006 and the PPR of 2008, the Procurement Guidelines of the ADB, 2015 (as amended from time to time) will be applicable. Again in the ADB’s Procurement Guidelines of 2015, it has been clearly, categorically and unequivocally stated under the sub-caption “Purpose” of the caption “Introduction” that “the rights and obligations of the borrower and the providers of goods and works for the project are governed by the bidding documents, and by the contracts signed by the borrower with the providers of goods and works, and not by these Guidelines or the financing agreements”. So it is ex-facie clear that the rights and obligations of the borrower and the providers of goods and works for the project shall be governed by the bidding documents as well as by the contracts entered into between the borrower and the providers of goods and works. Precisely speaking, in the absence of any contract signed between the borrower and any of the bidders, the bidding document shall come into play and consequentially it will play a pivotal role in the bidding process. What we are driving at boils down to this: the ADB’s Procurement Guidelines of 2015 have opted for self-exclusion and self-effacement in view of the “Purpose” set forth therein.

37.         The upshot of the above discussion is that the provisions of the Bidding Document as based upon the Loan Negotiation Document and the User’s Guide to Procurement of Works are applicable to the SASEC Road Connectivity Project-II instead of the PPA of 2006 and the PPR of 2008. So on the question of applicability of the provisions of the Bidding Document to the procurement of the work under the project, we see eye to eye with Mr. S. M. Zahurul Islam.

38.         There is no gainsaying the fact that the impugned clarification was issued on 05.09.2017 by the Procuring Entity at the behest of the development partner (ADB). Although the task of implementation of the project rests with the borrower, yet the fact remains that the overall supervision, control and oversight of the project rest with the ADB. In the matter of issuance of the impugned clarification dated 05.09.2017 as evidenced by Annexure-‘F’ to the Writ Petition, the Procuring Entity did not act of its own accord; rather the Procuring Entity was directed to issue the impugned clarification on the basis of a reference made to the ADB by the Procuring Entity at the instance of the local company, that is to say, Infratech Construction Company Limited.

39.         In the “Preface” to the Bidding Document of the project, it has been stated in unmistakable terms that the bidding document for the procurement of work has been prepared by the Roads and Highways Department, Road, Transport and Highways Division, Ministry of Road Transport and Bridges, Government of the People’s Republic of Bangladesh and is based on the Standard Bidding Documents for Procurement of Works (SBD Works) issued by the Asian Development Bank (ADB) dated December, 2016. So it leaves no room for doubt that the Bidding Document of the present project is based on the Standard Bidding Documents for Procurement of Works issued by the ADB. As we have found that the various provisions of the Bidding Document are applicable to the instant SASEC Road Connectivity Project-II, the question of application of the provisions of Section 3(2)(gha) and Section 4 of the PPA of 2006 and Rule 54(4) of the PPR of 2008 does not arise at all. This necessarily leads us to hold that the contention of Mr. M. Shamsul Haque that the impugned clarification dated 05.09.2017 was issued in contravention of Rule 54(4) of the PPR of 2008 and the CPTUs Memo No. BCHjC¢X/¢p¢f¢VCE/ja¡ja(f§aÑ L¡S)/ 122/2009/ 1346 dated 26.11.2009 has no legs to stand upon.

40.         Be that as it may, for better appreciation, Clause 2.4.1 of Contracts of Similar Size and Nature of Evaluation and Qualification Criteria may be reproduced below:

Criteria      Compliance Requirements      Documents

Requirement

Single Entity

Joint Venture

Submission Requirements

All Partners Combined

Each Partner

One Partner

 

Participation in at least 1(one) contract that has been successfully or substantially completed within the last 10 (Ten) years and that is similar to the proposed highway standard road works, where the value of the Bidder’s participation exceeds 54 (Fifty-Four) million US$. The similarity of the Bidder’s participation shall be based on the physical size, nature of works, complexity, methods, technology or other characteristics as described in Section 6, Employer’s Requirements.

Must meet requirement

Not

applicable

Must meet

25%

of the

requirement

Must meet

requirement

Form EXP-1 And “Completion and Taking Over Certificate from the Employer or the Engineer indicating the contract name, value and completion time (or percentage of partial completion) to demonstrate compliance with the requirement.

 

             

41.         The impugned clarification bearing Memo No. 35.RHD.0000.PDSASEC-II.14.001 .2017-219 dated 05.09.2017 as evidenced by Annexure-‘F’ to the Writ Petition is quoted below for proper adjudication of the Rule:

“Government of the People’s Republic of Bangladesh

Office of the Project Director SASEC Road Connectivity Project-II

Improvement of Elenga-Hatikamrul-Rangpur Road to a 4- Lane Highway

Sarak Bhaban, Tejgaon, Dhaka

Phone+ 8802-8870100, Fax+ 8802-8870199

E-mail: pd.sasecii.rhd@gamil.com

Memo:    35. RHD.0000.PDSASEC-II.14.001.2017-219  Date: 05 September, 2017

Subject:   Clarification on Clause 2.4.1 (Contracts of Similar Size and Nature)  Evaluation and Qualification Criteria, Section-3, Volume 1 of 5 of Bidding Document for WP 05 and WP 06.

This is to inform all intended Bidders that there are some clarification requests regarding Clause 2.4.1 (Contracts of Similar Size and Nature) Evaluation and Qualification Criteria, Section-3, Volume 1 of 5 Bid Documents for WP 05 and WP 06, Clarification on Clause 2.4.1 of Section-3, Volume 1 of 5 of Bid Documents endorsed by ADB is as follows:

The requirement for Contracts of Similar Size and Nature clearly refers to the Bidder’s Participation. Therefore, if the participation was in the form of JV, only the respective share will be considered.

Also, Using Form EXP-1, the Bidders must specify percent and amount of participation of total contract amount. The Bidders may also provide pertinent information such as JV agreement and payment receipts.

(Quazi Shahriar Hossain)

ID No. 000291

Project Director (ACE, CC), RHD

SASEC Road Connectivity Project-II

Improvement of Elenga-Hatikamrul-Rangpur

Road to a 4- Lane Highway

Sarak Bhaban, Tejgaon, Dhaka

Distribution:

……………………………

…………………………… (All Bidders who have acquired Bid Documents).

Copy for Information:

  1. The Chief Engineer, Roads and Highways Department, Sarak Bhaban, Tejgaon, Dhaka.
  2. The Country Director, Asian Development Bank, Bangladesh Resident Mission, Agargaon, Dhaka.
  3.  Mr. Dong Kyu Lee, Project Administration Unit, SATC, Asian Development Bank, 6 ADB Avennue, 1550 Metro Manila Philippines.
  4. The Additional Project Director-1/2, SASEC Road Connectivity Project-II: Improvement of Elenga-Hatikamrul-Rangpur Road to a 4-Lane Highway, Sarak Bhaban, Tejgaon, Dhaka.
  5. The Deputy Project Director (EE, RHD), SASEC Road Connectivity Project-II: Improvement of Elenga-Hatikamrul-Rangpur Road to a 4-Lane Highway, 132/4 New Bailey Road, Dhaka.”

42.         The tone and tenor of the clarification as given by the Procuring Entity on Clause 2.4.1 of Section 3, Volume 1 of 5 of the Bidding Document endorsed by the ADB is of paramount importance to us. The requirement for Contracts of Similar Size and Nature clearly refers to the Bidder’s Participation. Therefore, if the participation was in the form of any JV, only the respective share must be considered. All the learned Advocates on behalf of the petitioner, namely, Mr. Shafique Ahmed, Mr. M. Shamsul Haque and Mr. Mahbub Shafique have objected to the Bidder’s Participation to the extent of their respective shares in the form of any JV. According to them, the local bidders including the petitioner-company have been greatly inconvenienced and prejudiced by this clarification dated 05.09.2017. Undeniably in the earlier two projects, namely, the SASEC Road Connectivity Project: Improvement of Joydebpur-Chandra-Tangail-Elenga Road (N-4) to a 4-Lane Highway having ICB No. SASEC-RCP/ICB/WP-02, LOT No. WP-04 and the Western Bangladesh Bridge Improvement Project (WBBIP) under the respondent no. 1, the work experience of any JV partner was accepted as 100% experience irrespective of its share in the JV. But in the instant project, the Procuring Entity being advised by the development partner (ADB) has made a volte-face by issuing the impugned clarification dated 05.09.2017.  In this context, it may be noted that every project is a class by itself. Keeping this dictum in mind, the two earlier projects, namely, the SASEC Road Connectivity Project: Improvement of Joydebpur-Chandra-Tangail-Elenga Road (N-4) to a 4-Lane Highway having ICB No. SASEC-RCP/ICB/WP-02, LOT No. WP-04 and the Western Bangladesh Bridge Improvement Project (WBBIP) can not stand comparison with the instant mega project, that is to say, SASEC Road Connectivity Project-II. This is the biggest project ever undertaken by the Government of Bangladesh in collaboration with the ADB. As every project is a class by itself, the reference to those two earlier projects, according to us, does not appear to be of any avail to the learned Advocates for the petitioner.

43.         ITB 7.1 provides that a prospective Bidder requiring any clarification on the Bidding Document shall contact the Employer in writing at the Employer’s address indicated in the BDS or raise his inquires during the pre-bid meeting if provided for in accordance with ITB 7.4. The Employer will respond in writing to any request for clarification, provided that such request is received not later than 21 days prior to the deadline for submission of bids. The Employer shall forward copies of its response to all Bidders who have acquired the Bidding Document in accordance with ITB 6.3, including a description of the inquiry but without identifying its source. Should the Employer deem it necessary to amend the Bidding Document as a result of a request for clarification, it shall do so following the procedure under ITB 8 and ITB 22.2. 

44.         ITB 7.4 contemplates that the Bidder’s designated representative is invited to attend a pre-bid meeting, if provided for in the BDS. The purpose of the meeting will be to clarify issues and to answer questions on any matter that may be raised at that stage.

45.         ITB 7.5 stipulates that the Bidder is requested to submit any questions in writing to reach the Employer not later than 1 week before the meeting.

46.         Admittedly Infratech Construction Company Limited did not seek any clarification regarding the Clause 2.4.1 (Contracts of Similar Size and Nature) Evaluation and Qualification Criteria from the Employer before 21 days prior to the extended deadline for the submission of bids on 18.09.2017. It is the duty of the Employer to respond in writing to any request for clarification if it is made before 21 days prior to the deadline for submission of bids; but this having not been complied with by one of the bidders, namely, Infratech Construction Company Limited, that company did not acquire any vested right to get any response with reference to its query for clarification regarding the Clause 2.4.1. But nevertheless the Employer issued the impugned clarification dated 05.09.2017. Should the Employer deem it necessary to amend the Bidding Document as a result of a request for clarification, it must do so following the procedure laid down in ITB 8 and ITB 22.2.

47.         On this point, the main grievance Mr. Shafique Ahmed is that this clarification dated 05.09.2017 should have been made in the form of an addendum and this addendum should have also formed a part of the Bidding Document in accordance with ITB 8. As per ITB 8.1, at any time prior to the deadline for submission of Bids, the Employer may amend the Bidding Document by issuing addenda. ITB 8.2 contemplates that any addendum issued shall be a part of the Bidding Document and shall be communicated in writing to all who have obtained the Bidding Documents from the Employer in accordance with ITB 6.3. ITB 8.3 posits that to give prospective Bidders reasonable time in which to take an addendum into account in preparing their Bids, the Employer may, at its discretion, extend the deadline for submission of Bids, pursuant to ITB 22.2.

48.         From the facts and circumstances of the case, it transpires that the Employer did not deem it necessary to issue the impugned clarification dated 05.09.2017 in the form of any addendum and on that account, the Employer did not amend the Bidding Document in accordance with the procedure laid down in ITB 8. Clarification of any Clause of the Bidding Document under ITB 7 is one thing and amendment of the Bidding Document under ITB 8 is another thing. So it necessarily follows that any clarification and any amendment of the Bidding Document are not interchangeable, albeit a clarification may be issued in the form of an addendum.

49.         A reference to Annexure-‘3’ unerringly shows that on 31.08.2017, the Procuring Entity sent an email to the ADB headquarters in the Philippines pleading for protection and nourishment of the local construction companies in the form of JVs. But the ADB did not consider the email of the Procuring Entity dated 31.08.2017 sympathetically and instead at the behest of the ADB, the Procuring Entity issued the impugned clarification dated 05.09.2017. In this respect, the major role was played by the ADB and the Procuring Entity was left with no other alternative but to issue the impugned clarification dated 05.09.2017. So the Procuring Entity can not be blamed single-handed by the petitioner-company in that regard.

50.         It is the admitted position that the pre-bid meeting was held on 23.08.2017 whereas the Infratech Construction Company Limited asked for the clarification regarding the Clause 2.4.1 (Contracts of Similar Size and Nature) Evaluation and Qualification Criteria on 30.08.2017. Although the clarification was sought for regarding the Clause 2.4.1 (Contracts of Similar Size and Nature) Evaluation and Qualification Criteria beyond the time-frame as contemplated by ITB 7.1 and ITB 7.5, yet the impugned clarification dated 05.09.2017 was issued at the directive of the ADB. According to Mr. M. Shamsul Haque, as the impugned clarification dated 05.09.2017 was issued infracting ITB 7.1 and ITB 7.5, it can not be sustainable in law. We are not impressed by this submission of Mr. M. Shamsul Haque inasmuch as non-compliance with the time-frame as given in ITB 7.1 and ITB 7.5 does not entail any consequence. In the absence of any consequence arising out of non-adhering to the time-frame as given in ITB 7.1 and ITB 7.5, we are inclined to hold that the impugned clarification dated 05.09.2017 can not be assailed merely on this count.

51.         A question may, however, arise: why did the Employer fail to deem it necessary to issue any addendum in pursuance of the impugned clarification dated 05.09.2017? It is difficult to answer the question. That is anybody’s guess. As a matter of fact, the reasons for non-amendment of the Bidding Document resulting from the impugned clarification dated 05.09.2017 entail a journey into the psyche of the ADB, an exercise fraught with conjectures, inferences and speculations. This Court can not delve deep into the psyche of the ADB. 

52.         After the issuance of the impugned clarification dated 05.09.2017, the petitioner-company made a review application before the Country Director, Asian Development Bank, Bangladesh Resident Mission, Agargaon, Dhaka on 06.09.2017. While the review application was pending before the ADB, the petitioner filed the instant Writ Petition in this Court under Article 102 of the Constitution and obtained the Rule Nisi along with the interim order of stay on 12.09.2017. So it is evident that the petitioner-company only waited for 5(five) days for review of its application by the ADB. Anyway, according to the petitioner-company, it is the urgency of the matter which impelled it to file the Writ Petition in a great hurry so that its interest was not jeopardized in any manner. Yes, we agree that the matter was very urgent and having found no response from the ADB within 5(five) days, the petitioner-company filed the Writ Petition. The interim order dated 12.09.2017 staying the operation of the impugned clarification dated 05.09.2017 was stayed by the Appellate Division in Civil Petition For Leave To Appeal No. 3547 of 2017 and while the stay order of the Appellate Division was in force, the Tender Evaluation Committee was at liberty to evaluate the technical bids and accordingly the said Committee evaluated the technical bids and submitted a technical evaluation report on 06.11.2017 which was sent to the ADB on 08.11.2017 for its concurrence. Although the ADB called the shots in the matter of issuance of the impugned clarification dated 05.09.2017; yet curiously enough, the ADB has not been impleaded as a respondent. Over and above, the evaluation of the technical bids by the Tender Evaluation Committee and the ultimate submission of the technical evaluation report to the ADB for its concurrence have rendered the Rule Nisi infructuous for all practical purposes. Against this backdrop, the contention of Mr. M. Shamsul Haque that the Rule Nisi has not become infructuous in the changed scenario appears to be bereft of any substance.

53.         The User’s Guide to Procurement of Works is intended to provide guidance to borrowers on how to prepare any bidding document for an admeasurement (unit price) type of work contract, and how to evaluate bids and award contract, based on the ADB’s Standard Bidding Document for the Procurement of Works that are available for cases of “with” and “without” prequalification.

54.         The ADB’s vision is an Asia and Pacific region free of poverty. Its mission is to help its developing member countries reduce poverty and improve the quality of life of their people. Despite the region’s many successes, it remains home to a large share of the world’s poor. The ADB is committed to reducing poverty through inclusive economic growth, environmentally sustainable growth, and regional integration. Based in Manila, the ADB is owned by 67 members including 48 from the region. Its main instruments for helping its developing member countries are policy dialogue, loans, equity investments, guarantees, grants and technical assistance.

55.         In a mega development project, the High Court Division is often confronted with public interest vis-à-vis private interest of the writ-petitioner. The petitioner-company has a private interest in the matter of execution of the project, if eventually the contract is awarded thereto. Regard being had to the public interest in general, can the Court disregard the private interest of the petitioner-company? According to us, in a case of this nature, the High Court Division is required to strike a balance between public interest and private interest.

56.         It goes without saying that the public interest involved in the case mega project far outweighs the private interest of the petitioner-company. Where the public interest is predominant, the private interest of the petitioner-company takes a back seat. There can not be any iota of doubt thereabout.

57.         Be that as it may, it is admitted on all hands that our local construction companies do not have much skill, expertise and technical know-how in carrying out such mega development projects like the SASEC Road Connectivity Project-II. So the skill, expertise and technical know-how of the local construction companies including the petitioner-company must be raised to an international standard. In this regard, both the Government of the People’s Republic of Bangladesh and various development partners including the ADB have a stake. Unless the local construction companies acquire the competence of the international standard as enumerated above, they will lag far behind the foreign companies in the execution of massive development projects. In such a situation, we think, a duty is cast upon the Government and the development partners to ensure that the interest of the local companies is protected and their skill, expertise and technical know-how are enhanced to the international level facilitating them to submit international bids single-handed for such large-scale procurement works.

58.         However, from the materials on record, we do not find any mala fides or bad faith in the matter of issuance of the impugned clarification dated 05.09.2017 and as such the same can not be dubbed mala fide as argued by Mr. Mahbub Shafique.

59.         As to the submission of Mr. Shafique Ahmed that the impugned clarification dated 05.09.2017 has virtually altered the terms and conditions of the Bidding Document, we would like to observe that the terms and conditions of the



Writ Petition No. 13068 of 2017