(Special Original Jurisdiction)
Tariq ul Hakim J
Md Faruque (M Faruque) J
Va Tech Wabag Ltd………….
…………Petitioner
in WP No. 13490 of 2017
vs
Dhaka Water Supply and Sewerage Authority (DWASA), represented by its Managing Director. WASA Bhaban, Dhaka and others Respondents
Judgment
February 27th, 2018
Public Procurement Act (XXIV of 2006)
Section 29(1)
A person suffering or is likely to suffer loss or damage due to failure of a procuring entity to fulfill its obligations under this Act, to complain against that procuring entity to the authority as specified in Section 30. The provision is subject to restriction in sub-section (2) of the Act and its sub-section (2) states that no complaint under sub-section (I), can be made inter alia against the decision to reject applications for pre-qualifications, tenders, quotations or proposals. . .. ( 15)
Public Procurement Act (XXIV of 2006)
Sections 29 and 30
Since Va Tech Wabag Limited filed its application to the Review Panel-2 of CPTU after rejection of its bid its application was in fact an Appeal from the rejection which is barred under Sections 29 and 30 of the Act. The consequent findings of the Review Panel therefore cannot be sustainable in law (17)
Abdul Matin Khasru with Panka Kumar Kundu Advocates-For the Petitioner in Writ Petition No. 13490 of 2017 and for the Respondent Nos. 3 in WR No. 15003 of 2017.
Mahbubey Alam with Md Ekramul Haque and Syfuzzaman aider Haider Advocates-For the Petitioner in Writ Petition No. 15003 of 2017 and of the Respondent Nos. 2-3 in Writ Petition No. 13490 of 2017
Amatul Karim DAG with ARM Hasamzzaman AAG and Zaidy Hasan Khan AAG-For the Respondent No. 4 in Writ Petition No. 13490 of 2017.
Judgment
Tariq ul Hakim J : In Writ Petition No. 13490 of 2017 the petitioner has impugned inaction/ failure of the respondents to comply with the decision dated 7-12-2016 (Annexure D) of the Review Panel-2 of the Central Procurement Technical Unit (CPTU)’ lMED (Implementation Monitoring Evaluation Division) of the Ministry of Planning, Government of the People’s Republic of Bangladesh in Review Application No. 60 of 201,6 and for a direction upon the respondents to comply with the said decision dated 7-12-206 and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. In Writ Petition No. 15003 of 2017 Rule Nisi was issued calling upon the Respondents to show cause why the order dated 7-12-2016 passed by the Review Panel-2 of the Central Procurement Technical Unit (CPTU) IMED. Ministry of Planning, Government of the People’s Republic of Bangladesh in Review Application No. 60 of 2016 allowing the prayer of the respondent No.3 directing re-evaluation of the final technical proposal (2nd stage) of the said respondent’s sid (Annexure G) should not be declared to have been passed without lawful authority and of no legal effect and /or pass such other or further order or orders as to this Court may seem fit and proper.
3. Both the Rules concern common questions of law and facts and were heard together and are being disposed of by this single judgment.
4. Facts in brief, is that Dhaka Water Supply and Sewerage Authority (DWASA) invited tender for two projects (i) design and constructing of a water treatment plant with 21.5 kilometer raw water transmission pipeline from the river Meghna at Araihazar to Gandharbpur in Narayangonj and (ii) three years operation and maintenance of the said facilities under the name and style Design, Build, Operation and Maintenance of Intake, Raw Water Pipeline and 500 M LD Water Treatqlent Plant at Gandharbpur under DESPWSP (package 1 and 2) (hereinafter referred to as the Project) . The aforesaid Project is to be funded by the Asian Development. Bank (ADB), Agency France Development (AFD) and European Investment Bank (EIB) along with the Government of Bangladesh and the tender process is guided by International ConlPetitive Bidding and ADB Procurement Guidelines as per Loan Agreement with the donors. The tender is a two stage bidding process. Pursuant to the said tender notice 9 (nine) bidders submitted their initial bids on 25-3-2015 of whom two bidders Va Tech Wabg Limited Technicas Reunidas JV and Degremont OTV JV became conditionally responsive in the first stage, and they were asked to comply with clause 25.2 of the ITB (Instructions to Bidders) and accordingly two bidders submitted their final technical and financial bids with all rectifications on 4-2-2016.
The Tender Evaluation Committee after assessment of the technical bids found the bid of Va Tech Wabag Limited as substantially non responsive and its financial bid was not opened for consideration. The bid of Degremont OTV JV was however found responsive and as per Tender Evaluation Committee (TEC) decision their financial bid was opened and being the only responsive bidder they were finally evaluated as the lowest bidder.
On being assessed substantially non responsive Va Tech Wabag Limited filed complaint to the Project Director of the aforesaid Project on 30.10.2016 and thereafter to the Director General of CPTU on 20-11-2016 for administrative review or re-evaluation of its technical bid under Rule 56 of the Public Procurement Rules. 2008. The Review Panel-2 of the Central Procurement Technical Unit (CPTU) after hearing the parties and perusing the relevant documents awarded its decision on 7-12-2016 allowing the application of Va Tech Wabg Limited and directed DWASA to re-evalute the final technical bid submitted by both Va Tech Wabg Limited and Degremont OTV JV by constituting a four member sub-committee pursuant to Rule 67(1) of the Public Procurement Rules, 2008. Since DWASA has not compliedo with the aforesaid decision of the Review Panel-2 of CPTU. Va Tech Wabg Limited being aggrieved has come to this Court and obtained the Rule in Writ Petition No. 13490 of 2017.
5. Similarly DWASA and Project Director of DWASA also being aggrieved have come to this Court and obtained the Rule in Writ Petition No.15003 0f 2017.
6. Both the Rules are being contested by the same patties by filing respective Affidavit-in-Opposition and Supplementary Affidavit-in-Opposition reiterating the points made in their respective Writ Petitions.
7. Mr Abdul Matin Khasru assisted by Mr Pankaj Kumar Kundu, the learned Advocate for the petitioner in Writ Petition No. 13490 of 2017 and respondent No.3 in Writ Petition No. 15003 of 2017 submits that the decision of the Review Panel-2 of CPTU is final and binding upon the parties as per provision of Rule 60(5) of the Public Procurement Rules, 2008. The learned Advocate further submits that the bid of the competitor bidder Degremont-OTV JV is 50% higher than that of the estimated cost of the Project and also much above the petitioner’s price but WASA has taken initiative to award the tender to the highest bidder without considering the bid of the petitioner and without calling re-tender.
The learned Advocate further submits that although in the initial tender process as many as nine bidders participated but the Tender Evaluation Committee considered only two tenders responsive and finally declared Degremont-OTV JV as qualified as a result of which no competition took place in the tender process in respect of technical and financial bids. The learned Advocate further submits that the Tender Evaluation Committee overlooked many drawbacks of Degremont-OTV JV but took notice of some minor deviations of Va Tech Wabag Limited. In this respect he submits that the Tender Evaluation Committee did not comply with the Clause 48.10 of the Standard Document of the respondent No.1 which provides that the Tender Evaluation Committee may regard a tender as responsive even if it contains minor and insignificant deviations which do not meaningfully alter or depart from the technical specifications.
The learned Advocate further submits that Va Tech Wabag Limited is confioent that he has offered a fully compliant final technical bid as opposed to the offer by the bidder No. I Degremont-OTV JV whose offer is only 50% above the estimated price and that WASA ought to have considered the bid of the petitioner in completing the evaluation process. The learned Advocate therefore submits that the Review
Panel-2 of CPTU has rightly directed WASA to re-evaluate the final technical bid of two bidders Va Tech Wabag Limited and Degremont -OTV JV as per provision of Rule 67(1) of the ‘Public Procurement Rules 2008 by a 3 Member Technical Sub-Committee incorporating two experts from any Government. Autonomous, Semi-Autonomous Body, University or any professional organization or any persons having reputations in related subject and thereafter to take further steps after opening the financial bid of the petitioner.
8. As against this, Mr Mahbubey Alam assisted by Mr Md Ekramul Haque and Mr Syfuzzaman, aider Haider the learned Advocate for the petitioner in Writ Petition No. 15003 of 2017 and respondent Nos. 1-3 in Writ Petition No. 13490 of 2017 vehemently submits that the Public Procurement Act and Rules made thereunder have no application in the instant case as per specific provision of Rule 3 of the Public Procurement Rules. 2008 as in the instant case the tender process will be governed by the ADB Procurement Guidelines. He submits that the decision of the Review Panel-2 of CPTU has got no application in the instant case and cannot be implemented and that the instant Rule is not maintainable. The learned Advocate further submits that Va Tech Wabag Limited illegally filed Review Application No. 60 of 2016 and that the Review Panel-2 of CPTU had no authority to deal with the same since the Public Procurement Act and Rules framed thereunder has no application in the matter. The learned Advocate further submits that the Review Panel-2 of CPTU without considering relevant laws and facts passed the impugned judgment and order directing the Tender Evaluation Committee to constitute a Technical Sub-Committee for reevaluation of the second stage of technical proposal and that there is no provision in the ADB Procurement Guidelines for constituting a Technical Sub-Committee after completion of final technical bid by a high powered Tender Evaluation Committee and therefore the judgment and order of Review Panel-2 of CPTU is without lawful authority and of no legal effect. The learned Advocate further submits that about 28 material failures and deviations was found in the bid of the petitioner Va Tech Wabag Limited and therefore it was finally found non-responsive but the Review Panel-2 of CPTU without considering those defects passed the impugned judgment and order which is illegal and without lawful authority.
The learned Advocate next submits that since the instant tender process is guided by the ADB Procurement Guidelines and the ‘Tender Evaluation has been done by the high powered thirteen member Consultant Committee thus the direction given by the Review Panel-2 of CPTU is without lawful authority and of no legal effect. The learned Advocate further submits that the tender process is a two stage bidding.
The Technical Sub-Committee of the Public Procurement Rules. 2008 is only applicable for the first stage and not for theo second stage and Va Tech Wabag Limited has applied after finalization of the second stage of bidding and therefore the decision of the Review Panel-2 of CPTU is not applicable and the Review Panel has no authority
to pass the judgment. The learned Advocate further submits that the ADB has already given concurrence on the final evaluation report and if the non responsive bidders bid is opened. ADB will declare mis-procurement of the package and considering the same the order of Review Panel-2 of CPTU is liable to be set aside. In this regard he has drawn our attention to a Gmail received from the ADB dated 14-12-20 16 (Annexure 2) and submits that the impugned order is without lawful authority and liable tobe set aside.
9. Ms. Amatul Karim assisted by Mr ARM Hasanuzzaman AAG. Ms Saira Fairoz. AAG and Mr Zaidy Hasan Khan AAG the learned Deputy Attorney General adopts the submissions of Mr Mahbubey Alam and submits that the Rule issued in Writ Petition No. 13490 of 2017 is not maintainable since under Section 29 of the Public Procurement Act, 2006 no Appeal can be filed against a rejection of tender bid by the procuring authority and in the instant case the petitioner filed Review Application to the CPTU after cancellation of final technical proposal by Va Tech Wabag Limited and therefore the judgment and order passed by the Review Panel-2 of CPTU is without lawful authority and of no legal effect. The learned DAG further submits that the Tender Evaluation Committee rejected the tender process of the petitioner and communicated the same to them on 16-11-2016 and Va Tech Wabag Limited filed its complaint and Appeal to the CPTU after that date which is therefore not maintainable as per provision of Section 29 of the Public Procurement Act, 2006. The learned DAG further submits that ADB informed the Government of Bangladesh and Dhaka WASA that ADB would declare mis-procurement if its loan is not utilized immediately and work order not awarded to Degremont-OTV JV whose bid has been found responsive by the Tender Evaluation Committee and submits that Writ Petition No. 13490 of 2017 filed by Va Tech Wabag Limited is liable to be discharged.
10. In response Mr Abdul Matin Khasru, the learned Advocate for the Va Tech Wabag Limited has drawn our attention to a judgment of the Appellate Division in Civil Petition for Leave to Appeal No. 2684 of 2012 where it has been held that the Public Procurement Act, 2006 would be applicable unless there is any provision in the Loan Agreement inconsistent with the said Act or if there is any specific provision in the said Act that it will not be applicable and in the instant case since there is no such provision he submits that the Public Procurement Act and Rules framed thereunder are applicable and the decision of the Review Panel-2 of CPTU is binding on all the parties. The learned Advocate further submits that there is no provision in the ADB Procurement Guidelines contradicting the provisions of the Public Procurement Act. 2006 and Rules framed thereunder and therefore said Act and Rules would be applicable in the instant case.
The learned Advocate further submits that Va Tech Wabag Limited applied to CPTU under Rule 56(9) of the Public Procurement Rules, 2008 and therefore the application to CPTU is maintainable and the judgment and order of the Review Panel-2 of CPTU should be implemented.
11. We have considered the submissions of the learned Advocates, perused the Writ Petitions. Affidavit-in-Oppositions, Supplementary Affidavits and Annexures.
12. Section 3 of the Public Procurement Act. 2006 state as follows:
?? ?????? ? ?????????? ? — (?) ????? ????????? ?? ??? ?????? ?????
(?) ?? ??? ??????????? ???????? ???????? ????, ??? ? —
(?) ??? ???????? ?????? ?????? ??????? ???? ?????? ??? ????, ????? ?? ???? ???? ;
(?) ??? ??????, ???-?????? ?? ??? ????? ???? ?????????? ??? ?????????? ??¯’? ?????? ??? ????, ????? ?? ???? ???? ;
(?) ??? ????????, ???????? ???, ???? (???? ???? ???? ???) ?? ???? ????????, ?????? ??????? ???? ?????? ??? ????, ????? ?? ???? ???? ;
(?) ??? ?????? ??????, ?????? ??????? ?? ??¯’?? ???? ??????? ???????? ??? ??, ?????? ?? ???? ??? ??????? ???? ??? ????, ????? ?? ???? ???? ?
??? ???? ???? ??, ???????? ??? ??????? ????? ??????? ???? ?????? ???? ??????? ???? ????????? ??????
13. The proviso to Section 3 clearly states that unless there is anything contrary in any agreement between the Government and a foreign country or Development Organization for procurement of goods or credit facilities the provisions of the Act and its Rules shall prevail. Mr Mahbubey Alam appearing for WASA submits that ADB Procurement Guidelines will be applicable in the contract for the Project and that the Public Procurement Act does not have any application. The ADS Procurement Guidelines however does not exclude the applicability of the Public Procurement Act and its Rules and therefore in our opinion in the instant procurement contract for the Project the Public Procurement Act, 2006 and Rules, 2008 made thereunder will be applicable.
14. Sections 29 and 30 of the Public Procurement Act, 2006 are as follows:
??? ?????? ?????? ??????? –(?) ??? ??????? ?? ????? ????? ????????? ??? ?????? ??????? ????? ????????? ???? ??????????? ???? ?? ????? ??????????? ????? ???????? ?????? ???? ???? ????????? ???????? ???? ?? ? ?????? ??????????? ???? ?????? ????? ????? ????????
(?) ??????????? ???????? ??-???? (?) ??? ???? ??? ?????? ????? ??? ????? ?? ???? —
(?) ????, ????? ?? ???? ???? ?????? ???????? ;
(?) ??? ?????????? ????????? ????????????? ????? ???????????? ;
(?) ?? ??? ???????? ??????????? ????????? ?????? ?????? —
(?) ?????-???????? ?????, ??????, ?????? ?? ???????? ????? ?????? ????????? ; ??
(?) ?????? ???? ????????? ?????????? ????? ?????? ????????? ????????????? ?????? ????????? ??????????
??? ????????? ??????????? ???? ?????? ?????, ????, ???????? — (?) ???? ?? ?? ???? ????????? ??????? ?????? ????????? ????????? ????????? ??????????? ???? ????? ????? ???? ??? ???????? ??? ?????? ????? ????, ???? ????????? ??? ???????????? ????????? ???????? ????? ??? ????????? ??????
(?) ??? ???????, ??? ????????? ????????? ?????? ??????? ?????????? ?š’??? ?? ?? ?? ???? ????????? ??????? ????????? ?????? ????? ?????? ??, ???? ???? ????????? ??????? ??? ???????? ????? ?? ???????? ????????? ??? ??????????? ??????? ????? ????????? ???? ???? ????? ????????
(?) ???? ??(?) ?? ???? ?????, ???????? ??? ???? ?????????? ? ????????? ???????? ???? ???, ????????? ???? ?? ????? ???????”????? ? ?????? ???? ????? ??????? ????????????, ????¯’???? ????? ??? ???? ?????? ??????? ???????? ????????????? ??????? ?? ?? ?????? ????? ??????? ??? ????? ????? ?
??? ???? ???? ??, ????????????? ???????? ??? ????? ????? ???????? ??????????? ???? ???
(?) ?? ???? ???? ???? ????? ? ?????????? ?????? ???? ?????? ????????? ?????
15. The plain reading of the aforesaid Sections 29(1) entitles a person suffering or is likely to suffer loss or damage due to failure of a procuring entity to fulfill its obligations under this Act, to complain against that procuring entity to the authority as specified in Section 3D, The aforesaid provision is subject to restriction in sub-section (2) of the said Act and its sub-section (2) states that no complaint under sub-section (1). can be made inter alia against the decision to reject applications for pre-qualifications, tenders quotations or proposals.
(To be continued)
16. In the instant case although the petitioner claims to have filed a complaint to the administrative authority and thereafter to CPTU against the decision of the procuring authority to evaluate its technical proposal under Rule 56 of the Public Procurement Rules, 2008 in our opinion it is in fact an Appeal to the concerned authority against the rejection of Va Tech Wabag Limited’s bid. This view appears to be further evident from the fact that the Tender Evaluation Committee and procuring authority made its final decision on the tender in its final technical proposal evaluation report dated 14th October, 2016 where it was clearly stated
“Bidder 7
The Final Technical Proposal of Bidder 7 contains:
=Material changes to the technical solutions from the (initial) Technical Proposal
=material failures to rectify aspects incorporated into the Memorandum entitled “Schedule of Non-Conformities”
=material failures to respond to addenda.
ITB 25.2 includes: The Executing Agency may reject the Bidder’s Final Technical Proposal if the basic technical solutions are not the same as those in the Bidders Technical Proposal:
As a result of the material changes to the technical solutions from the (initial), Technical Proposal, Bidder 7’s Final Technical Proposal may be rejected.
ITB Clause 25.2 also states that:
‘Failure by a Bidder to rectify all aspects incorporated into the Memorandum entitled “Schedule of Non-Conformities” or to submit a substantially responsive Final Technical Proposal in response to any final addenda to the Bidding Document, which may be issued by the Executing Agency in accordance with ITB 5 (Amendment of Bidding Document) and ITB 21.1 (a) (Invitation for Final Technical Proposals and Bids), will result in the rejection of the Bidder’s Final Technical Proposal.
“Therefore, the Final Technical Proposal of Bidder No., 7 is found not substantially responsive and is rejected pursuant to ITB Clause 25.2.”
Thereafter the Superintendent Engineer and Project Director of DESWSP by his letter dated 16-11-2016 informed Va Tech Wabag Limited that the Executive Agency has completed the evaluation of the Final Technical Proposals. In accordance with Clause 26.2 of the ITB we confirm that your Final Technical Proposal has been assessed not substantially responsive and so your Bid will not be opened. Four your information, in accordance with ITB 25.2 your. Final Technical Proposal was rejected as it contained:
* Material changes in the basic technical solution from your Initial Technical Proposal
*Material failures to respond to Schedule of Non Conformities (SoNC) and
*Material failures to respond to Addenda after the Initial Technical Proposal.
17. The aforesaid communication to Va Tech Wabag Limited clearly indicate that their bid was finally rejected by the procuring authority. Thereafter on 20-11-2616 Va Tech Wabag Limited filed its application for administrative review of evaluation of its Final Proposal for the Project to the Review Panel-2 of CPTU under Rule 56 and 57 of the Public Procurement Rules, 2008 . Thus in our opinion since Va Tech Wabag Limited filed its application to the Review Panel-2 of CPTU after rejection of its bid its aforesaid application was in fact an Appeal from the rejection which is barred under Sections 29 and 30 of the Public Procurement Act, 2006. The consequent findings of the Review Panel-2 of CPTU therefore cannot be sustainable in law.
18. In Writ Petition No.15003 of 2017 the petitioner Dhaka Water Supply and Sewerage Authority (DWASA) has prayed inter alia for a declaration that the judgment passed by the Review Panel-2 of CPTU allowing Review Application No. 60 of 2016 by Va Tech Wabag Limited directing to constitute a Technical Sub-Committee to re-evaluate the Final Technical Proposal should be declared illegal. It appears that although the Review Panel-2 of CPTU passed its judgment on 7-12-2016 the DWASA did not challenge it until filing of Writ Petition No. 15003 of 2017 which is as late as almost one year after passing of the said judgment and the delay has been explained in the said Writ Petition to have occurred due to ignorance of law. In the meantime DWASA appears to have constituted a 4 (four) member Sub-Committee pursuant to the decision of the Review Panel-2 of CPTU as evident from the Memo No. 46.085.014.01.00. 065.2016-97 dated 9th February, (Annexure 12 of the Affidavit-in-Opposition of the respondent Nos. 1-3) and Memo No. 46.085.014.01.00.065. 2016-61 dated 29th January, 2017 (Annexure 11 of the said Affidavit-in-Opposition). In Memo No. LGED/CE/E-57(Angsha-l)/2004/2073 dated 15-2-2017 (Annexure 14 of the Affidavit-in-Opposition of the respondent Nos. 1-3) certain difficulties have been pointed out by the Chief Engineer, Local Government Engineering Directorate, Agargoan, Dhaka. In the Memo No. 46.085.014.01.00. 004.2016-12 dated 05th January, 2017 (Annexure L to the Supplementary Affidavit in Writ Petition No. 13490 of 2017) the Secretary, Ministry of Local Government, Rural Development and Co-operatives, Local Government Division, Dhaka has stated that if the bid of Degremont-OTV JV accepted and the work order is awarded to them then the project cost will be higher than the estimated cost and opinion has been sought as to how surplus fund is to be procured. Paragraph Nos. 8, 10 and 11 are reproduced below:
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??? ???????? ?? ????? ???????? ???? ??? ????? ? ?????-? ????? ?? ????????? ???? ????? ??? ?? ??? ????????? ????? ????? ??? ????”???????? ??????? ???? ? ???????? ????????????? ???? ?????-?? ?????? ??? ????????? ????? ?????? ???????? ????????? ????? ???????? ??????????? ?????????? ??????? ????????? ???????? ???????? ??? ????????? ???? ?????? ???? ????????? ?????????? ??????? ??? ??? ????
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19. Thus even though the petitioner DWASA in Writ Petition No. 15003 of 2017 has impugned the judgment and order of the Review Panel-2 of CPTU they appear to have made an effort to implement and it is not clear why they have come to this Court after almost one year with a prayer to declare the same illegal. Furthermore from the aforesaid Memo dated 5-1-2017 (Annexure L) it appears that the Ministry of Local Government, Rural Development and Cooperatives, Local Government Division, Dhaka has made a proposal to the Cabinet Committee for Government Purchase (CCGP) to cancel the present tender and invite fresh bids for the Dhaka Environmentally Sustainable Water Supply Project (DESWSP) but from the Memo dated 13-12-2017 (Annexure Y-2) it appears that the matter was dropped from the Agenda of the meeting of the CCGP dated 18-1-2017 (Annexure 21) but there is nothing before us to show the final outcome of the aforesaid proposal for cancelling the present tender.
20. The learned Deputy Attorney General has vehementally submitted that if there is fresh tender then it will cause a Jelay in implementation or the Project and that ADB is going to withdraw its promised fund for the Project and that may frustrate the project. It is for the respondents to decide whether to take decision in the light of the proposal by the Ministry of Local Government, Rural Development and Co-operatives, Dhaka (Annexure L) for fresh tender or whether to award the work order to Degremont OTV JV even though their quoted Project cost is more than 43% of the estimated cost as these matters are beyond the scope of adjudication by this Court. Thus in our opinion both the Writ Petitions suffer from legal infirmities and the Government is at liberty to make a final decision on the proposal by the Ministry of Local Government, Rural Development and Co-operatives, Dhaka vide Annexure L and proceed accordingly in awarding the work.
21. With the above observations both the Rules are disposed of.
There will be no order as to costs.
