ICC (PVT.) LIMITED vs MINISTRY OF ENERGY (POWER DIVISION) through Secretary Civil Secretariat, Islamabad Rr

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ICC (PVT.) LIMITED VS MINISTRY OF ENERGY (POWER DIVISION) through Secretary Civil Secretariat, Islamabad Rr. 26(3), 26(4) & 39---Contract, award of---Failure by company (petitioner) to furnish performance guarantee in terms of 'Instructions to Bidders' document---Bank guarantee, encashment of---Legality---Plea of petitioner-company that that the procuring agency extended bid validity period on more than one occasion and each time the bidders, including the petitioner, gave their consent conditional and subject to an increase in the prices of the items earlier offered through their bid; that the procuring agency was under a legal obligation to undertake an exercise to ascertain the exponential increase in prices between the period of submission and the date of acceptance of the bid; that without following the provisions of the Public Procurement Rules, 2004 ('the Rules'), the act of encashment of the bank guarantee by the procuring agency was unwarranted and illegal---Validity---Admittedly, the petitioner agreed to the extension of the bid validity period at all instances sought by the procuring agency---Perusal of the replies submitted by the petitioner revealed that it had simply mentioned its concern regarding the increase in the prices, which could not be considered as a condition for its consent for the extension of the bid validity period---Even otherwise if such contention of the petitioner was accepted, the Rules did not permit the procuring agency to accept the request of the bidder to increase prices of the items mentioned in the bid at the stage of Notification of Award ("NOA"), because Rule 26(4) of the Rules provides that in case of an extension of the bid validity period by consent of the parties, the substance of the bid and the prices of the items mentioned therein, shall remain unchanged---Had the petitioner been unsatisfied with the prices for undertaking of the specified work after the expiry of the bid validity period it had an option to withdraw its bid, without forfeiture of its bid security---Once the petitioner agreed to perform the specified work on the same terms and conditions and prices as mentioned in the bid document, it was estopped by its conduct of requesting an increase in the prices---Petitioner's conduct compelled the procuring agency to request encashment of the bid security as provided under the Rules---Petition for leave to appeal was dismissed and leave was refused.

ICC (PVT.) LIMITED vs MINISTRY OF ENERGY (POWER DIVISION) through Secretary Civil Secretariat, Islamabad Rr — 2023 SCMR 360 SUPREME-COURT

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