Hydropower project: Supreme Court grants leave to appeal

The Supreme Court on Monday granted leave to appeal in a matter relating to alleged irregularities in bidding for erection of Golen Gol Hydropower Project at Chitral, seeking federation’s reply through Secretary Ministry of Water & Power and three other parties to the case. Resuming the hearing of an appeal filed against Islamabad High Court verdict, a two-member bench comprising Justice Jawwad S Khawaja and Justice Azamat Saeed Sheikh asked respondents to file replies within two weeks.

Hashmat Ali Habib had challenged an IHC verdict on behalf of Muhammad Shafique Khan Sawati under Article 185 of the Constitution, making the Federation of Pakistan through Secretary Ministry of Water & Power, Water & Power Development Authority, WAPDA House Lahore, NAB through its Chairman and M/s.Andritz Hydro Gmbh-Andritz Austria (China) Ltd Construction through GM Impress (Private Limited) Islamabad respondents. The petitioner urged the court to decide as many as 12 questions of law: Whether the Division Bench of the IHC seriously erred by holding that under Rule 33 (3) of the PPRA Rules, the WAPDA authorities can issue notices to the bidders, who had already pre-qualified and there in no need to re-tender the whole project while this rule relates to rejection of bids only.

Whether the judges have seriously erred in appreciation of law involved and facts on record and admitted padding of Rs one billion but the same is wrongly mentioned as an increase of Rs one million comparing to the previous bid which prima facie as per Rule 2(f) of PPRA Rules 2004 amounts to a corrupt and fraudulent practice on the part of Respondent No 2 thus caused miscarriage of justice and loss of over Rs one billion to the national exchequer?

Whether the judges in chamber have erred to apply correct rules of PPRA as in this case. Re-bidding under Rule 34 was done and under Rule 27 for extension of time for submission of bids advertisement is mandatory in a manner similar to the original advertisement which was not done violating the mandatory rules. Whether the learned judges in chamber erred in holding that allegations are not supported by any evidence ignoring the documents on record being conclusive proof/admission as per Wapda documents in the previous bid the final evaluated price was Rs 4,745,915,559/- and letter of acceptance is issued for a total price of Rs 5,65,121,256/- a clear padding of Rs one billion, thus what else is required as further evidence.

Whether the judges seriously erred in not taking into consideration the fact that in this case Wapda had declared Respondent No 4 as non-responsive and guilty of 19 major commercial and one major technical deviations but suddenly by which magic stick made it blue eyed of Wapda for the award of a contract with a padding of Rs one billion to a declared non-responsive single bidder.

Whether Wapda under law was required to strictly observe PPRA Rules to establish transparency in the procurement but committed a serious violation by extending the submission period for more that 12 times creating confusion for the genuine bidders and by playing an evil game declared the Respondent No 4, a single bidder, as successful with Rs one billion padding to award contract.

Whether Wapda pending the re-bidding process illegally issued firstly Letter of Intent to M/S Rain Power on the one hand and on the other hand it issued in haste a letter of acceptance to Respondent No 4 even against the reservations expressed by Member Finance as evident from minutes of meeting which rendered the entire process of re-bidding illegal.

Whether Wapda by tricks created a confusion so that no reputed bidder could participate and awarded the contract with a padding of Rs one billion to Respondent No 4, a single bidder in violation of PPRA Rules. Whether the technical bid, received around midday on 26-11-2013, could be evaluated in a few hours and commercial bid open on 27-11-2013 in few hours the Chairman and two members (one water other Power) approved it, rendering it as doubtful act liable to be set-aside as it was not approved by a competent authority.

Whether as per clause 31 of Bid Evaluation Criteria the absence of schedule of prices is fatal as it clearly stipulates that “bid will be evaluated on the basis of quantities stated in the schedule of Prices and materials specified in the Contract Specifications”.

Whether the award for Rs 5,650,121,256/- for a project wherein the Revised PC-1 for a cost of Rs 4.6 billion is still pending for an approval in Ministry of Water & Power prima facie amounts to corruption and fraudulent corrupt practice and liable to be cancelled”. Whether the impugned judgement is bad in law and facts hence liable to be struck down/set aside to ensure the transparency in exercise of Powers by Wapda observing the PPRA Rules in the interest of nation. After granting leave to appeal against the impugned judgement of the IHC in the matter, the bench adjourned the hearing of case for a month.