St. Electronics (Infer Software Sys.) Pvt. Ltd. Vs. Patimas Intel. Sdn Bhd and others, V ADC (2008) 100

Case No: Civil Petition for Leave to Appeal No. 710 of 2007

Judge: Md. Joynul Abedin ,

Court: Appellate Division ,,

Advocate: Mr. Rokanuddin Mahmud,Mr. Ajmalul Hossain QC,,

Citation: V ADC (2008) 100

Case Year: 2008

Appellant: St. Electronics (Infer Software System) Pvt. Ltd.

Respondent: Patimas International Sdn Berhad

Subject: Business and Commercial Law,

Delivery Date: 2007-6-6

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Amirul Kabir Chowdhury J
Md. Joynul Abedin J
 
St. Electronics (Infer Software System) Pvt. Ltd.
..................Petitioner
Vs.
Patimas International Sdn Berhad and others
……….....Respondents
 
Judgment
June 6, 2007.
 
The High Court Division upon correct appreciation of law and assessment of the materials on record arrived at a correct decision by making the rule absolute. We would deal with the single economic unit point in an appropriate case. In the present case, since the respondent No. 1, writ petitioner, disclosed in its bid documents sufficient materials showing that it submitted its bid as an agent of its disclosed principal, AT and PCB, the financial turnover requirements submitted by it fulfilled the requirement of clause 6.1 of ITB and the bid was therefore responsive. It suffices to say that the fact of the case in hand does not call for overlooking or ignoring the corporate distinction in law of the respondent No. 1 (PISB), AIT and PCB. There is therefore no cogent reason to interfere with the same.
 
Lawyers Involved:
Rokanuddin Mahmud, Senior Advocate, instructed by Bivash Chandra Biswas, Advocate-on–Record- For the Petitioner.
Rafiq-ul-Huq, Senior Advocate, instructed by Mvi. Wahidullah, Advocate-on-Record-For Respondent No. 1.
Ajmalul Hossain, Senior Advocate, instructed by Syed Mahbubar Rahman, Advocate-on- Record-For Respondent No. 4.
Not Represented- For Respondent Nos. 2-3.
 
Civil Petition for Leave to Appeal No. 710 of 2007.
(From the judgment and order dated 20.5.2007 passed by the High Court Division in Writ Petition No. 11238 of 2006.)
 
JUDGMENT
 
Md. Joynul Abedin J.
 
1. This petition for leave to appeal by the writ-respondent No.4 is directed against the judgment and order dated 20.5.2007 passed by a Division Bench of the High Court Division in Writ Petition No. 11238 of 2006 making the rule absolute.
 
2. The fact shortly stated is that the respondent No.1 as the writ petitioner filed the aforesaid writ petition challeng­ing the order dated 5.11.2006 passed by the respondent No.2 on the complaint filed by the petitioner, writ-respondent No.4, holding that the bid offer of the respondent No.1, writ-petitioner, was non-responsive and any process for awarding the contract to the respondent No.1 should be immedi­ately cancelled with a direction upon the respondent Nos. 3 and 4, Ministry of Finance and Bangladesh Bank respective­ly, to award the contract in favour of the petitioner, writ-respondent No.4, as the lowest responsive bidder.
 
3. This case involves awarding of a con­tract pursuant to the International Tender floated by the respondent No.4, Bangladesh Bank, for its project called "Central Bank Strengthening Project" for supply, installation, testing and commis­sioning of standard hardware and software including training and technical support under the World Bank with a view to strengthening the Bangladesh Bank through automation process to enable it to effectively play more efficient role as a central bank. International Development Association (IDA) extended a credit in favour of the People's Republic of Bangladesh towards the cost of its Central Bank Strengthening Project. The estimat­ed cost, of the package was U.S. Dollar 4.296 million as reflected in the procure­ment plan approved by the World Bank. Invitation for Bids was published in vari­ous newspapers in Bangladesh including "Prothom Alo" dated 20.1.2006 and 3(three) bidders namely, the petitioner, respondent No.1 and another, Thakral Gulf FZE (UAE), submitted their bids. All the 3(three) bids were opened on 4.6.2006 and the tender of the respondent No.1, Patimas International Sdn Berhad (PISR), writ-petitioner, was found to be the low­est. The Tender Evaluation Committee (TEC) of the Bangladesh Bank, respon­dent No.4, however found all the three bids as non-responsive and recommended for retender.
 
4. The said report of the TEC was forwarded to the World Bank on 5.6.2006. In response, the World Bank by its letter dated 25.6.2006 requested the respondent No.4, Bangladesh Bank, for review of its evaluation, since the deviations were mainly technical in nature and lapses were not substantial.                                      
 
5. The TEC thereafter reviewed all the bids and found all the tenders responsive and thus recommended acceptance of the lowest tender submitted by the respondent No.1, writ-petitioner. In due course, after observing all formalities, the respondent No.3, Ministry of Finance, by its letter dated 16.10.2006 approved the recommendation of the respondent No.4, Bangladesh Bank, for acceptance of the tender of the respondent No.1, writ-petitioner.                                                    
 
6. In the meantime, the petitioner, writ respondent No.4, ST Electronics (Info Software Systems) Pvt. Ltd., filed several complaints to the Project Director of the Bangladesh Bank, Governor of the Bangladesh Bank and also to the Secretary, Ministry of Finance. But finding no response from any of them the petitioner, writ-respondent No.4, filed a formal complaint to the Review Panel, the  writ-respondent No.1, on  12.10.2006,  which is a body constituted  under Regulation 53 of the Public Procurement Regulations (PPR) to look into the complaints of the bidders.                             
 
7. The Review Panel after hearing the petitioner, writ-respondent No.4, and the respondent No.4, Bangladesh Bank, by its; order dated 5.11.2006 held that the bid of the respondent No.1, writ-petitioner, was non-responsive and as such the awarding of the contract to the respondent No.1, writ-petitioner, was to be cancelled and the tender of the petitioner, writ respon­dent No.4, as the lowest bidder should be accepted.
 
8. Against this backdrop, the respondent No.1, writ petitioner, moved the High Court Division under Article 102 of the Constitution of the People's Republic of Bangladesh challenging the aforesaid order dated 5.11.2006 passed by the Review Panel mainly on the contentions that (1) the petition of complaint was not maintainable inasmuch as the petitioner, writ-respondent No. 4, failed to exhaust all the administrative forums for remedies available to it as contemplated under reg­ulations 51, 52 and 53 of the PPR, (2) the impugned order dated 5.11.2006 was violative of the principle of natural justice as the same was passed against the respon­dent No. 1, writ-petitioner, without giving any opportunity to it of being heard in the matter by the Review Panel when the impugned order singularly affected the respondent No.1 and (3) the Review Panel passed the above order that the bid offer of the respondent No.1, writ-petitioner, was non-responsive without proper apprecia­tion of the fact that the respondent No.1, writ-petitioner, submitted its bid having fully disclosed in its bid documents that it participated in the bid as an agent of its disclosed principal, Automatic Identification Technology SDN BHD (AIT) and Patimas Computars Berherd (PCB) and also being a member of one single economic unit comprised of them and accordingly it met the requirements of the tender. In the premises, the High Court Division issued Rule Nisi.
 
9. The petitioner, writ-respondent No.4, opposed the rule by filing an affidavit-in-opposition contending that the petitioner, writ-respondent No.4, filed the complaint petition before the Review Panel after exhausting the administrative forums pro­vided in the PPR; principle of natural jus­tice was complied   with (though  the respondent No.1, writ-petitioner, was not heard) as the Bangladesh Bank being the procuring authority was heard in full length when the entire case was canvassed by it before the Review Panel; the bid of the respondent No.1, writ petitioner, was non-responsive  inasmuch as  the bank guarantee of the respondent No.1, writ-petitioner,  was furnished by a foreign bank in Bangladesh currency without the same being drawn on non-judicial stamp paper of Tk.150/- and the turn-over and other criterion for the last five years of the respondent No.1, writ-petitioner, did not satisfy the requirements set out in clause 17.2 of the ITS.
 
10. Bangladesh Bank, respondent No.4, however supported the case of the respon­dent No. 1, writ-petitioner, on all points by filing affidavit-in-opposition stating that all the bid documents of the three bidders were examined, evaluated by all con­cerned and found responsive and the World Bank also agreed with the recom­mendations of the TEC in awarding the contract in favour of the respondent No. 1, writ petitioner. But the Review Panel without appreciating the importance and significance of the economic realities of the present day commercial world wrong­ly directed the cancellation of the award of the contract in favour of the respondent No. 1, writ-petitioner.
 
11. The High Court Division on consideration of the materials on record made the rule absolute declaring the order dated 5.11.2006 passed by the Review Panel illegal on the finding that the bid of the respondent No.1, writ petitioner, was responsive; bank guarantee furnished by the foreign bank (May Bank, Malayasia) in Bangladesh currency is in consonance with clause 17.2 of the ITB; respondent No.1, writ-petitioner, was a member of the single economic unit of PCB group of companies and the turnover for the last five years justifies the requirements of the ITB; formal complaint of the petitioner, writ-respondent No.4, before the Review Panel was valid and the order of the Review Panel dated 5.11.2006 was violative of the principle of natural justice. This led the petitioner, writ-respondent No.4, to file the petition for leave to appeal.
 
12. Mr. Rokanuddin Mahmud, the learned Counsel for the petitioner submits that the High Court Division erred in failing to appreciate that the bid of the respondent No.1, writ petitioner, was not responsive inasmuch as the bank guarantee furnished by a foreign Bank in favour of the respon­dent No.1, writ petitioner, in Bangladesh currency without the same being drawn on non-judicial stamp paper of Tk 150/- was violative of clause 17.2 of ITB. Mr. Mahmud also submits that the High Court Division erred in failing to consider that the respondent No. 1, writ petitioner, could not itself satisfy the requirements of clause 6.1 of the ITB with regard to its turnover up to the stipulated amount for the last five years. Consequently, it is sub­mitted, the bid of the respondent No.1, writ petitioner, was not responsive and the impugned judgment is therefore liable to be interfered with by this court.
 
13. We are not impressed by the submis­sions of Mr. Rokanuddin Mahmud. In the facts and circumstance of the case, we are of the view that, except the single eco­nomic unit point, the High Court Division upon correct, appreciation of law and assessment of the materials on record arrived at a correct decision by making the rule absolute. We would deal with the sin­gle economic unit point in an appropriate case. In the present case, since the respon­dent No.1, writ petitioner, disclosed in its bid documents sufficient materials show­ing that it submitted its bid as an agent of its disclosed principal, AIT and PCB, the financial turnover requirements submitted by it fulfilled the requirement of clause 6.1 of ITB and the bid was therefore respon­sive. It suffices to say that the fact of the case in hand does not call for overlooking or ignoring the corporate distinction in law of the respondent No.1 (PISB), AIT and PCB. There is therefore no cogent rea­son to interfere with the same.
 
14. Accordingly, the petition is dismissed with observation.
 
Ed.