PESHAWAR: The Khyber Pakhtunkhwa government will reinitiate the process of awarding contracts of eight major development projects in Peshawar and Mardan in line with the mechanism provided in the relevant law and rules, the Peshawar High Court bench was told on Wednesday.

Advocate general Abdul Lateef Yousafzai also told Chief Justice Yahya Afridi and Justice Abdul Shakoor that the government would reconsider its decision of executing two projects in Mardan through the Peshawar Development Authority after the court wondered how the authority could function in districts other than Peshawar.

The bench also directed additional advocate general Waqar Ahmad to produce details of projects awarded to private contractors by the government during the last one year.

AG also says govt to reconsider execution of two Mardan projects through PDA

It later adjourned hearing until today (Thursday) into a petition of the KP Contractors Association against the relevant rules allowing the direct award of contracts to the government organisations claiming the rules were in conflict with the Khyber Pakhtunkhwa Public Procurement Authority Act, which was meant to ensure transparency in procuring goods, services and works.

The petitioner has requested the court to declare direct contracting and sourcing to government organisations over private sector organisations through Rule 3 (2)(C) of the KP Procurement of Goods, Works and Services Rules 2014 as illegal, discriminatory and misprocurement in terms of section 2 (1) of the KPPRA Act.

The petitioner also prayed the court to declare Rule 3(2) (C) of the said rules as being against the spirit and purpose of the KPPRA Act and in conflict with the Act.

It added that the court might direct the provincial government to harmonise the said rules with the KPPRA Act.

Waqar Ahmad Khan, lawyer for the petitioner, said three important projects, including construction of Bab-i-Peshawar Flyover at Phase III Hayatabad, widening of Jamrud Road and construction of Service Road along with the Ring Road, were awarded to the NLC and FWO.

He said the provincial government had decided on Feb 27, 2017, to award direct contracts of several other major projects to NLC, including flyover on Warsak Road-Ring Road intersection in Peshawar, Level II flyover on GT Road and Ring Road intersection, internal roads rehabilitation projects in Peshawar city, Peshawar uplift programme and flyovers at Jawad Chowk and Katlang Chowk in Mardan.

The lawyer said the procurement process and competitive bidding was laid down in Section 28 and section 33 of the said Act which made it mandatory for procuring entities to resort to open competitive bidding as the preferred method of procurement.

He added that only exception provided in the said Act included cases of petty purchases, in emergencies (natural and government), for urgent requirement caused by unseen events, etc. He added that the decision was taken by the chief minister without approval of the cabinet and when the instant writ petition was filed then the matter was placed before the cabinet for approval. He claimed that the KPPPRA, secretary finance and planning and development department had objected over direct outsourcing of projects.

Additional advocate general (AAG) Waqar Ahmad and counsel for PDA, Tariq Afridi, argued that the rules were not in conflict with the Act as in section 33 of the Act it was clearly mentioned that contract could be awarded to a government procurement entity without bidding. They added that the procuring entities may exceptionally use other methods, including negotiations, if procurement was made from another procuring entity/public sector organisation within Pakistan.

AAG Waqar argued that the decision was taken to award contract to NLC as it was an organisation of international repute and that the NLC had completed project of Bab-i-Peshawar Flyover within five months.

He added that KPPPRA had only given certain advises to the government which were subsequently followed.

Advocate General Lateef Yousafzai contended that the government had so far not awarded contract to any entity because of a stay order issued by the high court few months ago. He stated that the decision of the government was also placed before the cabinet for approval.

The chief justice inquired why the government had been carrying out this process in piecemeal instead of following required mechanism. The Ag assured that the government would re-initiate the process of awarding these contracts.

Advocate Aamir Jawed appeared for the KPPRA and contended that the rules were not in violation to the KPPPRA Act.

He wondered how the rules could be challenged without challenging the Act and said under the law contracts of goods, services and works could be awarded directly to a government procurement entity.

During hearing, the bench asked under which law the PDA could initiate projects outside Peshawar in Mardan district.

The AAG contended that the PDA had expertise in development work due to which it had been made executing agency in different development projects.

The chief justice asked whether other government departments including communication and works department didn’t have experts.

Published in Dawn, July 6th, 2017