IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO.8511 of 2024 IN THE MATTER OF:

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

   -And-

IN THE MATTER OF:

Bhawal  Engineers  &  Construction  Ltd. represented by its Managing Director

.... Petitioner

-versus-

Government  of  the  Peoples  Republic  of Bangladesh and others

.... Respondents

Mr. Kayser Kamal, with

Mr. Abul Kalam Azad, Advocates

… for the petitioner

Mr. Md. Asaduzzaman, Attorney General with Mr.  Zahirul  Islam,  with  Mr.  Muhammad Rafiul Islam, Advocates

... for the respondent Nos.1 and 3

Present:

Mr. Justice Sashanka Shekhar Sarkar

And

Mr. Justice A.K.M. Rabiul Hassan

Hearing on 14.11.2024, 20.11.2024 Judgment on 26.11.2024

Sashanka Shekhar Sarkar, J:

This Rule Nisi at the instance of the petitioner was issued on an application under Article 102 of the Constitution in the following terms:

“Let  a  Rule  Nisi  be  issued  calling  upon  the Respondents to show cause as to why the decision of

the respondent Nos. 2-6 debarring the petitioner from participating in any tender under the whole-e-GP portal from 01.07.2024 to 30.06.2025 by publishing its name in the Debarment List in e-Gp website of the Central Procurement Technical Unit (CPTU), so far it relates to Serial No. 35, (Annexure-F) under ITT Clause 4.2 (b) Section 64 of Public Procurement Act 2006, Rule 54(11), 127 of Public Procurement Rules, 2008 as contained in E-mail dated 30.06.2024 sent at 18.20 PM by the e-GP System Admin of the respondent No. 6 (Annexure-E) and as to why the e- mail dated 30.06.2024 sent at 18.20 PM by the e-GP System Admin of the respondent No. 6 (Annexure-E) informing the petitioner company about the decision of debarment from the e-GP System, should not be declared to be without lawful authority and are of no legal effect and/or such other or further order or orders be passed as to this Court may seem fit and proper.”

At the time of issuance of the Rule, this court was pleased to direct the Respondent Nos. 2-6 to allow the petitioner to access in the e-GP portal for petitioner’s pending works (Annexure – G) to the writ petition only.

The relevant facts for disposal of the Rule are that the petitioner is a  limited  company  is  engaged  in  the  business  as  general  contractor, consultant, architect, designer, estimator and planner etc. The petitioner company is one of the highest tax payers in the Mymensingh District and by  this  time  it  has  successfully  completed several construction  works worth  over  hundred  corers  taka  all  over  the  country.  The  petitioner company entered into Joint Venture Agreements with Rana Builders (Pvt.) Limited  on  02.11.2023 in order to bid for and perform the  works of Tender ID No. 866247, Tender ID No. 866253 and Tender ID No. 866318 and Tender ID No. 866322. The Joint Venture Agreements were executed such that Rana Builders (Pvt.) Ltd. shall share 98% of the profit and Loss, whereas the petitioner company shall hold 2% of the profit and loss. The Joint  Ventures  shall  be  named  “Rana  Builders  (Pvt.)  Ltd.  -  Bhawal Engineers & Construction Ltd. – JV” (RBL-BECLJV). Thereafter under the Joint Venture, the Petitioner Company along with the 1st Party, as a minority shareholder, submitted tender proposals along with all required certificates and papers for Tender Id. No. 866247, 866253, 866318 and 866322.  The  Rana  Builders  (Pvt.)  Ltd.  –  Bhawal  Engineers  & Construction Ltd. – JV ultimately failed to get Award of said tenders. Subsequently, respondent No.5 all on a sudden vide its letter being memo No. 35.01.3936.180.14.003.24-426 dated 13.02.2024 issued a show cause notice alleging that while evaluating the Tender along with the documents in relation to Tender ID No. 866247, 866253, 866318 and Tender ID No. 866322 as demanded by the Tender Evaluation Committee, the Payment Certificate submitted by the lead partner, Rana Builders (Pvt.) Ltd. was found to be false. In the show cause notice, it was further alleged about fraudulent practice against the petitioner company under Section 27 and 64  of  the  Public  Procurement  Act  2008,  and Rule  127  of  the Public Procurement Rules 2008. Subsequently, the petitioner company promptly

Thereafter, the petitioner company was apprehending a reply from respondent No. 5 to its utter shock as surprise the petitioner company received an e-mail from the respondent No. 6 on 01.07.2024 at 11.24 am that the petitioner company was debarred from the e-GP Portal for a period of one years, Debarred period being 01.07.2024 to 30.06.2025 for fraudulent practice according to ITT Clause 4.2 (b), Section 64 of the Public Procurement Act, 2006 Rule 54 (11) 127 of Public Procurement Rules 2008. Subsequently upon checking the e-GP Website the petitioner company found its name on the Debarment list as serial No. 35, debarring the petitioner company from participating in any tender under the whole e- GP Portal from 01.07.2024 to 30.06.2025 by publishing its name in the Debarment list in e-GP website of the Central Procurement Technical Unit (CPTU) and thereby petitioner company cannot participate in any fresh tender and make any correspondence for its current ongoing works via e- GP System. Being aggrieved, the petitioner company filed the instant writ petition and obtained Rule and direction. 

Mr.  Kayser  Kamal  along  with  Mr.  Abul  Kalam  Azad,  learned Advocates appearing for the petitioner by referring the impugned letter Annexure  –  E  submits  that  the  respondents  debarred  the  petitioner company  from  participation  in  the  tender  process  of  the  Government illegally  and  with  malafide  intention  in  violation  of  the  Public Procurement Act 2006 and Pubic Procurement Rules, 2008.

As  against  this,  Mr.  S.  M.  Zahirul  Islam  appearing  for  the respondent No. 3 by filling an affidavit-in-opposition and submits that the respondent No. 3 rightly debarred the petitioner company from the e-GP portal for one year as per ITT Clause 4. 2(b), Section 64 of PPA 2006 and Rules 54 (11), 127 of PPR, 2008 for exercising fraudulent practice and the debarment is effective on the current tender process.

Mr. Muhammad Rafiul Islam, the learned Advocate appeared for the respondent number 1 by filling an affidavit-in-opposition and adopted the submissions of the learned Advocate for the respondent number 3. 

Heard  the  learned  Advocates  of  both  the  parties  at  length  and perused the writ petition and the materials on record. 

Thereafter,  the  learned  Attorney  General  Md.  Asaduzzaman  appearing  for  the  respondent  number  1  and  3  very  frankly  made submissions that as the writ petitioner being only 2% share holder of Joint Venture Company has been penalized to be debarred from one year, while the another share holder, Rana Builders (Pvt.) Ltd. being 98% shares holder have been penalized by same tenure (one year) and therefore, the period of imposed penalty upon the petitioner company be reduced to the period already suffered. 

The learned Advocates for the petitioner concede the submissions of the learned Attorney General.

Having  considered  the  submission  of  both  the  parties,  we  are inclined to dispose of this Rule with a direction that the debarment period of the petitioner company, namely Bhawal Engineers & Construction Ltd. from  e-GP  portal  is  reduced  from  01.07.2024  to  30.11.2024  i.e.  the debarment period of 01 (one) year is reduced to 05 (five) months.

With  the  above  observation  and  direction,  the  instant  Rule  is

disposed of.

The debarring period of the petitioner company in the E-GP Portal of the Government is reduced to 05 (five) months from 01.07.2024 to 30.11.2024 instead of 1 (one) year and the respondents are hereby directed to take necessary steps regarding the same within 01 (one) week from receipt of the copy of this judgment and order. 

However, there is no cost to the parties. 

Communicate the judgment and order at once.

A.K.M. Rabiul Hassan, J.               

I agree.