IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

In the matter of:

WRIT PETITION NO. 6022 of 2021 In the matter of:

An application under Article 102 of the Constitution of the People’s Republic of Bangladesh.

-And-

In the matter of :

Priyanka Printing and Publications and others

..…. Petitioners

Versus-

The Government of Bangladesh and others

     ..... Respondents

Mr. Fida M. Kamal, Senior Advocate with

Mr. Aminul Haque Helal, Advocate

   ……For the petitioners Mr. Kazi Mynul Hassan, DAG

….. For the respondent No. 2 Mr. Md. Sarwar Ahad Chowdhury, Advocate

….. For the respondent No. 3 Mr. Muntasir Ahmed, Advocate

….. For the respondent No. 5 Mr. A.M Mahbub Uddin, with

Mr. H.M Shanjid Siddique, Advocate(s)

….. For the respondent No. 7 Mr. Rokanuddin Mahmud, Senior Advocate with

Mr. Aminul Haq, Advocate

….. For the respondent No. 8

Heard on 15.09.2021, 21.09.2021, 28.10.2021 and Judgment on 09.11.2021

 Present:                   

Mr. Justice Md. Ashfaqul Islam

And

Mr. Justice Md. Iqbal Kabir

Md. Ashfaqul Islam, J:

This Rule under adjudication, at the instance of the petitioners,

issued on 19.07.2021, was in the following terms:

“Let a Rule Nisi be issued calling  upon the respondents to show cause as to why the Arbitrary amendment made vide Corrigendum Notice being No. NCTB/ICT/280/607, dated 20.05.2021 in invitation for tender being reference No. NCTB/ICT/280/95, dated 29.03.2021 issued under the signature of the respondent No. 3 so far as it relates to inserting new terms and conditions in the Serial No. 4 of the Corrigendum Notice dated 20.05.2021 under the Head of Production Capacity of the Machinery (Annexure-‘D’) should not be declared to have been done without lawful authority and is of no legal effect and and/or such other or further order or orders passed as to this court may seem fit and proper.”

Upon two separate applications filed by the applicants Kachua Press and Publication and Agrani Printing Press they were added as respondent Nos. 7 and 8 respectively in the instant writ petition on 14.09.2021.

Background leading to the Rule in short is that the petitioners have been carrying on business with reputation since long. On 29.03.2021 a tender was published under the signature of respondent No. 3, the Secretary, National Curriculum and Textbook Board, Bangladesh for procurement of primary level textbooks for classes III to V for the academic year 2022 and the date of submission of tender was fixed on 12.05.2021. Subsequently on 09.05.2021 the aforesaid tender was amended vide Corrigendum No. NCTB/ICT/280/391 dated 09.05.2021 rescheduling the tender submission date on 25.05.2021 (Annexure-‘C’). The date for submission of tender further shifted on 31.05.2021 inserting some amendments and in particular 2nd part of the specification in the serial No. 4 under the head of production capacity of the machinery (Annexure-‘D’) is now in qeustion. However, the petitioners participated at different lots of the aforesaid tender process and submitted tender proposal with bank guarantee accordingly.

It is at this stage being aggrieved by and dissatisfied with the insertion of new terms and conditions in serial No. 4 of the corrigendum notice dated 20.05.2021 under the head of production capacity of the machinery, the petitioners moved this petition and obtained the rule as aforesaid.

Mr. Fida M. Kamal, the learned Senior Advocate appearing with Mr. Aminul Haque Helal, the learned Advocate for the petitioners upon placing the petition, series of supplementary affidavits and other materials on record mainly submits that the impugned corrigendum (Annexure-‘D’) in which new terms and conditions in serial No. 4 have been inserted is nothing but an outcome of malafide intention and arbitrary exercise of unfettered power of the concern authority and as such the same is liable to be declared to have been done without lawful authority having no legal effect.

He  substantiates his  argument that the amendment in  the said corrigendum have been made without following due process of law only to favour some tenderers in the said tender and as such the same is liable to be declared to have been passed without lawful authority.

He further submits that by the said corrigendum new terms and conditions those have been brought under the head of the production capacity of the machinery had flouted the Constitutional rights of the petitioners as guaranteed under Article 27, 28, 31 and 40 of the Constitution and for that reason that should be declared illegal.

On the question of maintainability of the writ petition as the same being not in keeping with Section 29(1) and 30 of the Public Procurement Act, 2006, (hereinafter referred to as PPA, 2006) the

learned Counsel submits that the provisions of making complaint as specified in those Sections of the PPA, 2006 is subject to restriction in terms of Section 29(2) which states that no complain under Section 29(1) of the PPA, 2006 can be made under the given circumstances, since the petitioners have challenged the amended corrigendum dated 20.05.2021 bringing changes in the terms and conditions of ‘production capacity’ of the tenderers which forms the part of pre-qualifications and said amendment is the continuation of imposing pre-qualifications as laid down in Section  ( which debars the petitioners to make any complaint under section 29(1) and 30 of the PPA, 2006 and hence the  petitioners  having  no  other  alternative  and  equally  efficacious remedy have been constrained to file the instant writ petition before this Division and as such the writ petition is maintainable.

On  the question  raised by  the  respondents  that  the  petitioners acknowledging the amendment of corrigendum in question participated in the tender process and hence they are stopped to raise any question regarding  the  said  amendment  of  corrigendum,  he  submits  that  the petitioners  submitted  tender  after  amendment  of  corrigendum  but subsequently  they  found  that  the  amended  corrigendum  in  question brought some changes of the production capacity imposing some vague terms  and  conditions  which  are  noting  but  outcome  of  official highhandedness, arbitrariness and colourable exercise of power and the said amendment was made out in order to favour some tenderers out of blatant nepotism and malafide intention and that they are likely to suffer damage due to the said corrigendum and decided to file this writ petition.

It is his submission that there have been corruption in the tender process in the guise of the amended corrigendum and the same have been published in several national newspapers whereas the respondents on different pretext have been trying avoid to address the real point at issue in this petition to the detriment of the petitioners. Reiterating all these grounds the learned Senior Advocate finally submits that in all fairness this Rule should be made absolute.

Almost all the respondents have opposed the Rule by filing affidavit-in-oppositions and also affidavit-in-reply. The sum and substance of their contention is that the procuring entity was absolutely within their authority while issuing the corrigendum in question under Section 45 of the PPA, 2006 and Rule 95 of the Public Procurement Rules, 2008 (hereinafter referred to as PPR, 2008). Commonly all the respondents harp on the same tune that the instant writ petition is not maintainable since the petitioners have not exhausted the alternative remedy as laid in Rule 57 of the PPR, 2008 in particular.

Drawing our notice to paragraph 6 of the affidavit in opposition filed on behalf of the respondent No. 3, the learned Counsel Mr. Sarwar Ahad Chowdury has submitted that the authority amended the tender document according to Rule 95 of the PPR, 2008. Clause 11.1 of the tender schedule clearly stipulates :

“At any time prior to the deadline for submission of Tenders, the Purchaser on its own initiative or in response to a clarification request in writing from a Tenderer, having purchased the Tender Document or as a result of a Pre-Tender meeting, may revise the Tender Document by issuing an addendum pursuant to Rule 95 of the Public Procurement Rules, 2008.”

Another aspect that has been brought to our notice by the learned Counsel Mr. A.M Mahbub Uddin appearing for the respondent No. 7 from the affidavit-in-opposition is that the petitioner No. 6 specifically stated in the letter in paragraph-(d) as follows:-

“We have examined and have no reservations to the Tender Document, issued by you on 29.03.2021; including Addendum to Tender Documents No(s): NCTB/ICT/280/391 issued in 09.05.2021 & NCTB/ICT/280/607 issued in 20.05.2021 accordance with the instructions to Tenders (ITT Clause 11).”

Therefore,  it  is  his  submission  that  the  petitioners  have unequivocally  accepted  the  conditions  of  the  tender  including  the impugned corrigendum at the time of participating in the tender process. He added that the petitioners have also suppressed some material facts that when 46 lots of the instant tender were subsequently floated for re- tender, the petitioners were successful in obtaining work as their price was within the estimated value of NCTB.

Contending all these factual aspects he ventured to impress upon this Court that by accepting the terms and conditions of the tender and the corrigendum impugned against the petitioners have participated in the tender and for that reason they don’t have any locus-standi to file this writ petition. As we have already expressed that all the respondents have resisted the writ petition on the ground of maintainability it would be worthwhile  to  decide  the  said  point  at  the  first  instance.  It  is  the submissions of the learned counsels appearing for all the respondents that this writ petition in its present form is not maintainable as the same being violative of Rules 57 and 58 of the PPR, 2008.

On the other hand the petitioners have alleged that because of the provision as laid down in section  ( it was not possible for the petitioners to exhaust the mandatory provisions of Rule 57 of the PPR,  2008. To appreciate the submissions of the contending parties it would be wise to glean the relevant provisions of PPA, 2006 and PPR, 2008.

Section 29(1) runs thus:

“২৯৷ (১)           এই ই                 উপ   প         প                       ই                  ই                ,     উ

             ৩০ এ          প                            প     ৷

(২)              উপ-    (১) এ                               ই    -

( ) ………

(খ)………

( )                                 ই   -

( )   -             ,  প ,                                  ;   

( )                                              প           

     ৷”

Further Section 30 of the PPA, 2006 states:

“৩০৷ (১)      ২৯ এ                                        

           প                    ই  এ  উ   প                    ই , উ     প উ                                    উ             ৷ (২)         ,                প                               উ     প                                 ,      ই               ই                                        প              উ প             প        প     ৷

(৩)     ৩০ (২) এ           ,               প  প         ও                  ই ,      প                   ও প                    

,     প        এ                                     এ  

  এ         উ প      ঠ       প      

           ,                            উ প             ই    ৷

(৪) এই            প        ও                                ই ৷”

On a plain reading of this provision it can be seen that appeal

against  any  allegation  regarding  tender  should  be  disposed  of  in accordance  with  PPR,  2008.  Rule  57  categorized  the  process  and procedure  to  be  followed  in  bringing  an  action  in  respect  of  any grievances as laid down in Rule 56 of the PPR, 2008.

Rule 57 states as follows:

-

-

Another striking feature is Rule 58, which provided provisions for review. In Rule 58(1) it has been clearly stated that:

-

Further Rule 58(2) states:

-

Therefore, if we relate all the facts with the laws as aforesaid it can  be  perceived  that  the  petitioners  should  have  ventilated  their grievances whatsoever in terms of Rule 57 of the PPR, 2008. In no way Section 29 of the PPA, 2006 stood as a bar in bringing the same before the review panel consisted of technical persons. The learned Counsel for the  petitioners  misdirected  himself  in  contending  that  owing  to  the provisions of Sections 29 and 30 of the PPA, 2006 it was not possible for the petitioners to bring any action against the impugned corrigendum. This argument is a fallacious one.

Section 45 of the PPA, 2006 read with Rule 95 of the PPR, 2008 and clause 11 of the tender schedule empowers the purchaser of the tender that is the procuring entity to revise the tender document before the tender submission date by issuing corrigendum. Section 45 of PPA, 2006 runs thus:

“৪৫৷ (১)      , উ                   প            এ      

প                   - প               প       ,  প    খ                                    প               প      প        

            প     এ  উ   প     প                     ই  উ    প                    ই ৷

(২)  প                              এ           

        উপ-    (১) এ             প               প          

 ই ,  প    খ           এ                ই        প       উ           প                     খ     প       প ৷”

Rule 95 further says:

“ -

”     And clause 11 of the tender schedule has already been mentioned

above.

Upon  scanning  of  the  relevant  papers  and  documents  our considered  view  is  that  the  petitioners  after  the  amendment  of corrigendum (Annexure-‘D’) dated 20.05.2021 voluntarily participated in the tender and as we have found that they have also got substantial quantum of work lots in other tenders where the amended corrigendum remained as it is. Further they have filed this writ petition after two months of the submission of the formalities of the tender in question.

Pertinently a question comes to our mind what prevented the petitioners to take up their grievances at the earliest opportunity before the different forum as laid down in Rule 57 PPR, 2008 and other provisions as discussed above. We reiterate again that we find no plausible reason on that score and certainly the petitioners have misdirected themselves endeavoring to mislead this Court contending that Section 29 of the PPA, 2006 was a bar in filing any complain under section 57 of PPR, 2008. In a recently passed decision in writ petition No. 5930 of 2020 (Karnafully Galvanizing Mills Limited vs. the Government of Bangladesh) this Division has decided this aspect of mandatory application of the aforesaid provisions vividly. As we have been informed that the printing of the books have already been at the verge of completion we refrain from making any comments on the same.

Upon considering diverse submissions pressed into service by the contending parties, the one and only inference that can be deduced is that this writ petition is not at all maintainable in its present form. Therefore, all other submissions forwarded by the petitioners are not required to be addressed in this context since those are merely academic.

In the result, the Rule is discharged. However, there will be no order as to cost.

Communicate at once.

Md. Iqbal Kabir, J:

                                          I agree.

Ismail (B.O)