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MESSRS POWER CONSTRUCTION CORPORATION OF CHINA LTD versus PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY THROUGH?CHAIRMAN WAPDA

International financial institution will request removal of qualifying contractor / bidder for funding agreement for ope Hydro Electric Power Project ("Project") between the Government of Pakistan and the International Development Association ("IDA"). Was collected through An organization that was an integral part of the World Bank Group-finance agreement provided that the bidding process for the selection of project contractors would be implemented in accordance with the i (Guidelines for Acquisition of Goods, Work and Consulting Services). IBRD loans and IDAs grant through World Bank lenders \\\ the (World Bank Guide Lines) - loans from international financial institutions such as IDAs, subject to the condition , Which included the award procedures and procedures. Prior to the contract and bidder's pre-qualification process for projects such compliance and enforcement of such conditions was considered by R5 of the Public Procurement Rules 2004, therefore, the 4 World Bank Guidelines are viable. The Water and Power Development Authority (WAPDA) listed the applicant company's name in the list of pre-qualified bidders, however, IDA informed WAPDA that the applicant company's name was in paragraph 2 (A) of Appendix I of the 4 World Bank Guidelines. ) From the list in which you provided that IDA has any rights or privileges. Reasonable request for modification or deletion from a list of pre-qualified contractors - Furthermore, the applicant company did not impose IDAs either before the High Court or before the Supreme Court in the current proceedings.

P L D 2017 Supreme Court 83

Present: Anwar Zaheer Jamali, C.J. Amir Hani Muslim and Sh. Azmat Saeed, JJ

Messrs POWER CONSTRUCTION CORPORATION OF CHINA LTD. through Authorised Representative—Petitioner

versus

PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY through Chairman WAPDA and 2 others—Respondents

Civil Petition No.2222 of 2016, decided 25th October, 2016.

(On appeal from judgment dated 31-5-2016, passed by the Lahore High Court in W.P. No.12535 of 2016 and I.C.A. No. 1114 of 2016).

(a) Public Procurement Rules, 2004 —

—R. 5—Guidelines for the Procurement of Goods, Works and Non-Consulting Services under the IBRD Loans and the IDA Credits Grants by World Bank Borrowers, Appendix-I, para. 2(a)—Hydroelectric Power Project funded by an International Financial Institution— Prequalification of interested contractors/bidders—Right of

International Financial Institution to request removal of a pre-qualified contractor/bidder—Scope—Funds for the Hydroelectric Power Project (“Project”) had been raised through a finance agreement between the Government of Pakistan and International Development Association (“IDA”), an organization which was an integral part of the World Bank Group—Finance agreement provided that the bidding process with respect to selection of contractors for the Project would he conducted in accordance with the Guidelines for the i(Procurement of Goods, Works and Non- Consulting Services under the IBRD Loans and the IDA Credits Grants by World Bank Borrowers'' (the World Bank Guidelines)—Loans obtained from International Financial Institutions like the IDA, came coupled with conditionalities, which included the mode and method of the award of contracts for the projects and the process of pre-qualifications of bidders—Compliance with and enforceability of such conditionalities was contemplated by R.5 of the Public Procurement Rules, 2004, therefore, the 4World Bank Guidelines' were enforceable—Water and Power Development Authority (WAPDA) had included the name of the petitioner-company in the list of pre- qualified bidders, however IDA intimated WAPDA to delete the name of the petitioner-company from the list, by exercising its right in terms of para.2(a) of Appen. I of the 4World Bank Guidelines', which provided that IDA had a right or a privilege of making a reasonable request for the modification of or deletions from the list of pre-qualified contractors—Further the petitioner-company had not impleaded IDA as a party either before the High Court or in the present proceedings before the Supreme Court, therefore, the decision of the IDA and the conclusion drawn by it that the petitioner-company was disqualified and not entitled to pre-qualification, was not the subject matter of the lis before the High Court—Decision by WAPDA not to agitate the matter further with the IDA at the behest of the petitioner-company was a pragmatic commercial decision taken not to jeopardize the funding from the IDA and thereby putting the entire project at risk—Constitutional petition filed by the petitioner-company before the High Court had been rightly dismissed—Petition for leave to appeal was dismissed accordingly. [pp. 90, 91, 92, 94] A, B, C, D, E, F & G

Asia Foundation and Construction Ltd. v. Trafalgar House Construction (I) Ltd. and others [(1997) 1 SCC 738) and Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455 ref.

(b) Constitution of Pakistan —

-—Arts. 184(3) & 199—Judicial review—Scope—Public policy— Judicial restraint—Courts in the exercise of their powers of judicial review, ordinarily, did not interfere with public policy decisions and exercised judicial restraint, [p. 95] II

Dossani Travels Pvt. Ltd. and others v. Messrs Travels Shop (Pvt) Ltd. and others PLD 2014 SC 1 and Suo Motu Case No.25 of 2009 (2011 SCMR 1743) ref.

Salman Aslam Butt, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record (absent) for Petitioner.

Shahzada Mazhar, Advocate Supreme Court with Ch. Akhtar Mi, Advocate-on-Record, Shahzad, Director (Legal) WAPDA and Inayat Mi, Chief Engineer, WAPDA for Respondents Nos. 1 and 2.

Muhammad Waqar Rana, Addl. Attorney General for Respondent No.3.

Date of hearing: 25th October, 2016.

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