Dredging works contract: TIP comes out hard on PQA clarification
Business Recorder 8 February, 2010

KARACHI (February 08 2010): Transparency International Pakistan (TIP), which is endeavouring hard to ensure 'zero tolerance' on corruption and procurement, has come out hard on Port Qasim Authority's clarification with regard to the alleged "misprocurement by PQA, causing loss of Rs 87 million Channel Maintenance Dredging Works 2009-2010, " highlighted by TIP in its letter sent to Vice-Admiral Asad Qureshi (Retd) Chairman, PQA, last month.

Syed Adil Gilani, Chairman, in his letter sent on February 6 said although TIP and PQA have signed MOU to vet procurements on the request of PQA, TIP has also been monitoring all procurements in Pakistan for compliance of the Public Procurement Rules, across the board, for last 4 years, and all violations are brought to notice of authorities.

Disputing PQA'a reply of February 2, he said it is not based on facts and needs to be corrected. TIP and PPRA have to be informed on the following acts of PQA, which have not been clarified.

The Tender of Capital Dredging, Deepening and Widening of Channel has not been discharged, and Maintenance Dredging tenders were invited, which is an unauthorised breach of Public Procurement Rues 2004. It is and is a gross violation of Rule No 33 and 34, as a procuring agency can not re-invite tender when the original tender has not been discharged. PQA has not denied the fact that two tenders for the same work were invited, which is against the PPRA Rules.

PQA had stated that "as far as Capital Dredging project is concerned, this technical matter can only he understood by those having requisite know-how to understand the distinction between maintenance and capital dredging works.

TIP contended that PQA cannot consider the unsolicited offer of Dredging international, as per PPRA Rules, for award of maintenance dredging work to them; particularly when it was submitted after opening and evaluation of financial bids. How could TIP even recommend such a course of action?".

TIP clarified that the Capital dredging Tender has a Bill of Quality (BOQ) item for the two year maintenance dredging of 10 million cm also. But in the current maintenance tender PQA has invited tenders for 1 year, and for quantity 3 MCM. Every one with common sense can understand this issue. TIP is not supporting the bid of complainant, but stating that PQA can not award contract to any of the three bidders under the PPRA Rules, as the Capital dredging tender is not vet discharged. PQA should end and understand the objections before replying.

TI Pakistan further clarified that when PQA Chairman requested TIP verbally to vet the current maintenance tender, TI Pakistan refused the request of the Chairman not on the ground that TIP is very busy, but categorically informed him either to discharge the Capital Dredging Tender, as inviting maintenance tender in presence of operative capital degrading tender where annual maintenance dredging is a BOQ item, is against he PPRA Rules, and if PQA does not discharge the first tender of Deepening, TI Pakistan should not be sent the maintenance tender documents for vetting, as TIP will comment on the tender process as illegal under rules. Inviting this tender therefore is a serious violation of Rules No 33 and 34.

The current issue is vetting by TIP, but handling a complaint by a bidder (who is also under FIA inquiry for past 3 years annual channel degrading maintenance contracts as slated by PQA and CCP) received by TIP is also necessary.

Tender of M/s Van Oord was unsigned, and as per term given in the tender documents, PQA Evaluation Committee correctly declared this tender as non-responsive in its evaluation report dated December 23, 2009. PQA Board Members Committee or as a matter of fact under PPRA Rules no one including GoP, has any authority to change any non-responsive tender as responsive tender. When PQA Procurement Manual as well as deepening of Channel Dredging Tender states that any unsigned tender will he declared non-responsive, and the PQA Evaluation Committee declared Von Oord tender which was unsigned as non-responsive, under whose authority the Board Member Committee made a non responsive tender as responsive? TIP asked.

Substantially non-responsive: A Tender determined as substantially non-responsive will be rejected and will not subsequently be made responsive by the tenderer by correction of the nonconformity. PPR 2004 also does not allow such amendments in evaluation criteria after bid opening.

Rule 30: Evaluation of bids.- (1) All bids shall be evaluated in accordance with the evaluation criteria and other terms and conditions set forth in the prescribed bidding documents. Save as provided for in clause (iv) of sub-rule (3) of rule 36 no evaluation criteria shall be used for evaluation of bids that had not been specified in the bidding documents. PQA has failed to respond to the issues pointed out by TIP which come under Rule 2(f).

The other point noticed from documents supplied with the PQA reply shows that the two letter of M/s Van Oord, letter head dated December 20, 2009, and the letter head dated December 15, 2009 are different, signed by the same person Dik Viot, who is designated as Desk Manager in December 20, 2009 letter and as D Viot, Area Co-ordinator South West Asia in December 15, 2009 letter. The signatures of the same person in the two letters are also different.

PQA has also failed to respond to the following issue pointed out by TIP.

PQA has violated (Rule No 35, which is mandatory on PQA to give evaluation report to bidders 10 days before award of tender. PQA has stated in its reply that it had posted the evaluation report on their website on January 7, 2010. However, PQA awarded the Contract to M/s Van Qord by issuing Letter of Intent, (which is award of contract) on January 6, 2010, one day prior to uploading the evaluation report on its website.

Responding to PQA's assertion that at least the integrity of PQA Board members, which include esteemed businessmen like Siraj Kassam Teli, Farooq Rahimtoola, Farouq Hadi, Muhammed A. Rajpar and Anjum Nisar, is above board and cannot be questioned be appreciated, TIP clarified that it has never expressed any doubts on the integrity of PQA Board members. In TIP letter it was highlighted that PQA Board Members are not allowed to be member of the PQA Evaluation Committee, as defined in the PQA Procurement Manual.

According to the letter, PQA has not replied to the following violation by PQA pointed out by TI Pakistan.

Board Technical committee with Board member Rajpar and Farooq, does not have any role in tender evaluation report. It is the Departmental Evaluation Committee which is the only forum to conduct evaluation. The Evaluation Report of Departmental Evaluation Committee can not be changed by Board Members. PQA shall refer to PQA Procurement Manuel approved by PQA, page No 16. which states that "it is agreed between PQA and TIP that the respective Departmental Evaluation Committees shall be the Grievance committees also, to examine the objections of the bidders.

The role of PQA Board Member was compromised in the past in the famous case of tender for the Establishment of Grain and Fertiliser Terminal on BOT Basis in 2006. The Tender Evaluation Report by PQA Consultant M/s NESPAK had ranked M/s Portia/Fotco as first ranking firm and M/s Grain Bulk Handler Ltd Kenya as third ranking firm. One of the PQA Board Member, Muhammad Rajpar (who was a Board Member of PQA in. 2006, and also at present, and is a current Trustee of KPT) was the Agent of the lowest ranking bidder. M/s Grain Bulk Handler Ltd Kenya, and also headed the Evaluation Report Reviewed Committee as Head of the Board's Development Committee, on June 8, 2006. Resultantly PQA revised the Technical Evaluated rankings, and M/s Grain Bulk Handler Ltd Kenya was made first Ranking, and M/s Portia/Fotco made the lowest ranking. An inquiry was held under the direction of the Prime Minister, and based on the inquiry M/s Portia/Fotco ranking as evaluated by M/s NESAPK was reverted back as the first Ranking firm. TIP was also consulted on this issue, and besides other recommendations, TIP in its letter to PQA dated July 5 2006 had commented as under:

The other issue is of' Transparency. In the bidding process there is the Conflict of Interest of agent of one of the bidders, who participated in the bidding process as a bidder till November 2005 (actually Muhammad Rajpar wrote letter to PQA on December 19, 2005 as bidder). Later as Head of the Board's Development Committee, he dealt this project in a meeting with PQA consultant on June 8, 2006.

Ports & Shipping Ministry knows very well the provision of KPT Act 1886, Section 15B, dated 1902 for the role of Trustee, which is also be applicable to all Board Members in all public authorities under the ambit of National Accountability Ordinance 1999..

[15B. Restriction on power of trustees to vote or discuss matters in which they are interested.- A trustee shall not at any meeting of the Boa rd or a committee thereof take part in discussion of or vote on, any matter in which he has directly or indirectly by himself or his partner any share or interest such as is described in Section 15, or in which he is interested either professionally on behalf of a client or as agent for any person.

In the tenders of multibillion dollars project of Diamond Island and QICT II, which were awarded to EMAAR and DP World in 2006, TIP had informed PQA that the procurement process was not transparent. Similar is the Award of QICT Terminal II, which was tendered by PQA under the terms of QICT Implementation Agreement and in consultation with TIP, but based on a MOU signed between Ministry of Ports & Shipping with Dubai Government. The process of tenders of QICT II were suspended, which was against the provision of the Implementation Agreement of QICT, and the BOT Contract was awarded to DP World on negotiated basis.

Syed Adil Gilani said: When you as Chairman PQA held a meeting with TIP on June 15, 2006, and stated that the MoU signed between PQA and TIP did not include Build, Operate and Transfer (BOT) project, and asked TIP to disassociate with PQA on BOT project as the GoP has signed an MoU with Dubai Government, TI Pakistan vide its letter dated June 20, 2006, communicated to you that on your verbal request, TIP may not be associated with PQA for vetting of their BOT and Privatisation Projects tender documents and processes, as BOT monitoring is not part of the MoU. TIP could only advise and it is up to the procuring agencies to comply with rules. TIP also informed PQA that post-tender opening changes in the technical as well as financial terms of the contract are not allowed and all such procurement stands to be declared as misprocurement. Action need to be taken under PPR 2004 rule No 2 (f), Corrupt and Fraudulent practices if such violations become public knowledge.

Concluding TIP Chairman asked Chairman PQA to provide a copy of the contract agreement, and the final Evaluation report to TI Pakistan under Rule No 48, so that further complaints made to TIP regarding changes made by PQA, "could be examined by us".

 

TIP raises eyebrows over NICL land deal
Business Recorder 6 February, 2010

ISLAMABAD (February 06 2010): Transparency International Pakistan (TIP) has raised eyebrows over a National Insurance Corporation Limited (NICL) land deal in Lahore, which according to the former will inflict a loss of Rs 1.45 billion to the exchequer. NICL, which is a subsidiary of the Commerce Ministry, is already in hot waters over procurement of space in Dubai.

In response to the public notice published in a Lahore-based newspaper on February 1, 2010, inviting objections on the purchase of 803 kanal-19 marla land offered by Muhammad Aslam Mughal, located at Moza Warich, off Ferozepur Road, Lahore, TIP has submitted its objection on the purchase of this land by NICL, based on the following grounds:

Public Procurement Regulatory Authority (PPRA), Cabinet Division, in its letter No F.1 (18)/DD-II/PPRA/2010 dated January 29, 2010 has sought a detailed report from NICL Chairman on the complaint of TIP on January 28, 2010, under section 5(2)(i) of Public Procurement Regulatory Authority Ordinance 2002. Transparency International Pakistan has informed NICL through a letter on January 28, 2010 that the purchase of this land is against the provisions of Procurement Rules, 2004.

3) The complaint received by TIP is that the land's current market value is Rs 300,000 per kanal, whereas NICL is buying it at Rs 2.5 million per kanal.

4) It has been reported to TIP that after January 28, 2010, the tendered price quoted by bidder Muhammad Aslam Mughal was Rs 2.4 million per kanal, which has been changed (illegally to be less than the valuation got by NICL from land valuators) after the bid opening, to Rs 2.1 million per kanal.

5) That the evaluation criteria was tailor made for a particular party, which did not specify the sub-criteria for award of scores for 7 sub categories. For example estimated cost (if given) is allowed 25 marks, and the only qualified party has been awarded 20 marks, whereas one party is awarded 3 marks.

It is also reported that minimum passing score was also not given in the evaluation criteria which is against the provisions of Pubic Procurement Rules 2004. Even the land offered by this single responsive party (as declared by NICL in its evaluation report) is less than the minimum land advertised by NICL which was 100 acres to 200 acres, as such the bid is non-responsive as the land offered is less than the minimum land required as per advertisement.

TIP is of the view that the Procurement Rules, 2004 have eliminated all discretions in procurement process and made corruption low profit and high-risk business. TIP Chairman Adil Gilani has requested NICL and M/s Asif Cheema and Associates to respond to TIP's complaint with a copy to PPRA before finalising procurement of this land.

 

PIA and TIP sign MoU
Business Recorder 5 February, 2010

KARACHI: 5 February The Pakistan International Airlines (PIA) and Transparency International Pakistan (TIP) signed a Memorandum of Understanding (MoU) to work together and enhance the element of transparency in PIA’s procurement processes. PIA Managing Director Capt Mohammad Aijaz Haroon and TIP Chairman Syed Adil Gilani signed the MoU on behalf of their respective organisations. PIA has always strived to maintain complete transparency in its commercial processes and will like to enhance the scope of TIP’s involvement in its commercial procurement by inviting TIP to conduct surveillance audits. staff report

 

Transparency wants suo moto on RPPS
The News 1 February, 2010

If Hazrat Umar can be questioned, why not president: Aitzaz (before SC-2007) Who said what about president's immunity in CJ case By Ansar Abbasi ISLAMABAD: The robust defence now being offered by some constitutional wizards for the immunity enjoyed by President Asif Ali Zardari is precisely similar to the that was advanced by the legal aides of his predecessor Pervez Musharraf in 2007 to protect the dictator's answerability before Justice Khalilur Rehman-led 13-member bench of the Supreme Court.

While Syed Sharifuddin Pirzada and Malik Qayyum had strained their vocal chords to defend Musharraf's immunity inside the courtroom, Barrister Aitzaz Ahsan, Hamid Khan, Fakhruddin G Ibrahim and others of their class had mercilessly attacked the president's immunity.

Musharraf's legal eagles wanted to secure for him the constitutional immunity under Article 248(1) of the Constitution; now in case of President Asif Ali Zardari Article 248(2) is cited to secure him from facing corruption cases in the courts.

Scanning through the newspaper clippings of May-July 2007 period when a 13-member bench headed by respected Justice Khalilur Rehman Ramday heard the Chief Justice of Pakistan Justice Iftikhar Muhammad Chaudhary, it is interesting to find Barrister Aitzaz Ahsan, Hamid Ali Khan and Fakhruddin G Ibrahim vigorously fighting against the constitutional immunity that Sharifuddin Peerzada and Malik Qayyum were seeking from the court.

Both Aitzaz Ahsan and Hamid Ali Khan while citing the example of Hazrat Umar (RA), who was questioned for his Abaya (long shirt), said that if the second Caliph of Islam could be questioned then why not the president of Pakistan. Not only that, Justice Ramday had said in his observations that the president was not above the law; the same was pressed by Aitzaz Ahsan too.

When Aitzaz was arguing for action against President Musharraf despite Article 248 of the Constitution, he was asked by Justice Nawaz Abbasi (who later took oath under Musharraf's PCO) that if Article 2(A) is read with Article 248 of the Constitution how would it impact the president. To this, Aitzaz said that although he did not want to refer to the Islamic traditions, if Hazrat Umar (RA) could be questioned about his Abaya (long shirt), why could not president Musharraf be impleaded in the case.

Article 2(A) forms Objective Resolution as part of the Constitution's substantive provisions.

As reported by an English daily on May 30, 2007, Ch Aitzaz Ahsan argued that according to Article 248, the president and governor could not be made party in criminal cases, they could not be arrested; but if any of their acts was contrary to the law, they have no protection under Article 248 of the Constitution. On this, Justice Faqir Khokhar remarked that the position of the president and governor was different from that of prime minister and chief Minister. If Articles 48 and 248(1) were read together, Justice Khokhar said, it would be clear that they had protection in the Constitution.

Aitzaz replied, "They have no immunity in this case." While giving the reference of Justice (Retd) Malik Qayyum's judgment, he said that it was absolutely clear that any act contrary to the law did not make the president and governor invulnerable. Justice Ramday asked, "Why do you want to implicate the President in person, the federation is fulfilling your purpose?" Aitzaz replied the question is not immunity but is subject to judicial review.

Justice Ramday asked again, "What is the inevitable reason that you want trial on President?" Aitzaz replied the federation is not answerable for the act of the president and if the government cannot answer the questions then the referring authority would be answerable, and gave the reference of the incident of March 9.

Justice Ramday asked, "If these were the questions, which one the president would have to answer?" Aitzaz gave an argument that the Chief Justice of Pakistan in his petition had levelled serious allegations of mala fide against the president and the president was not above the law. He gave the reference of Amman Ullah vs the Federal Government case and said that it was accepted in this judgment that the president could be made party.

Justice Ramday remarked that there was difference between the president and the minister. Aitzaz replied, "If you may see the law, there is no difference and gave the reference of Khawaja Tariq Rahim and Sherpao case in which the president was made party and the court had summoned the prime minster.

Justice Faqir Khokhar remarked that the PM could be summoned in a case but not the president and governor. "The president is not just only the referring authority", he said. If he was not mala fide, then why did he call the CJ, simply a reference could be sent to the Supreme Judicial Council? In this situation protection under Article 248 is not available, he said.

Another English daily reported on May 30 that Justice Ramday observed that no state functionary, not even the president could claim absolute immunity.

"What the law said was that the president could not be made a respondent before a court by name under Article 248 of the Constitution, although nobody could claim absolute immunity," the newspaper quoted Justice Ramday as having said while responding to the arguments of Advocate Hamid Khan, representing the Pakistan Bar Council, who had stated that the counsel of the federal government were claiming immunity for the president that he was not answerable to the court.

Citing two cases from the US judicial history, United States versus President Nixon and President Clinton versus Jones, Hamid Ali Khan was reported to have recalled that the two presidents of America had also claimed privilege but the US courts had interpreted the laws in a different way, contrary to what was being asserted.

Jang reported that Hamid Ali Khan in his arguments had also referred to Maulana Shibli Nomani's book Al-Farooq and said that Hazrat Umar (RA) had appeared before a Qazi ten times.

Sharifuddin Pirzada and Malik Qayyum had shown their serious grievance over the issue. Both had argued that under Articles 211 and 248 of the Constitution, the president cannot be impleaded due to the immunity available in these articles.

Senior advocate Fakhruddin Ebrahim had said that Pervez Musharraf could not be extended constitutional immunity because he had become president through "extra-constitutional measures".

"My case is that president Musharraf is not a duly elected president and, therefore, does not enjoy constitutional immunity," Mr Ebrahim was quoted to have argued before a 13-member larger bench of the apex court hearing identical petitions challenging the filing of a reference against the chief justice.

 

Implementation of NRO decision
The News 2 February, 2010

On the heels of myriad of interpretations given to the SC decision on the NRO, comes another well orchestrated campaign to accuse the government of using dilly-dallying methods in the implementation of the court decision. The media as well as certain political circles are engaged in hurling incessant flak on the government for not re-opening Swiss cases against the president, failing to remove the chairman NAB and not initiating any action against the former attorney general as directed by the court.

The lawyer community now has also joined the chorus and even threatened to launch an agitation to force the government to implement the decision in letter and spirit. The buck does stop there. The detractors of the government even predict a confrontation between the state institutions and derailing of democracy. These are indeed very intriguing suggestions and need an objective and honest probing into what is being said and what the government has done or not done in regards to the implementation of the Supreme Court decision on the NRO.

To begin with, it is known to every body that the government did not present the NRO in parliament and also did not defend it in the Supreme Court. So the declaration of the NRO as unconstitutional by the Supreme Court ab initio was a foregone conclusion and the government never desired otherwise. As soon as the decision was announced, the prime minister is on record to have accepted the decision and given the commitment to implement it. And the fact is that out of 8,034 cases 8,032 cases have already been reopened. The bureaucrats and politicians and the ministers are already going through the legal processes to defend themselves. The remaining two cases pertain to the president and the governor Sindh, who both enjoy immunity from being prosecuted under Article 248 of the Constitution.

An eminent lawyer Aitzaz Ahsan dilating on the immunity question has said that under the said article, the president does enjoy complete immunity in regards to criminal cases. It would perhaps not be out of place to mention that most constitutions of the world do provide immunity to the head of state from criminal prosecution during their tenure of office. On a petition against former president Bill Clinton, the US Supreme court is also on record to have upheld immunity of the US president from prosecution in criminal cases. The Swiss cases are of criminal nature and irrespective of how they were brought up, the fact remains that any move by the government to reopen the Swiss cases against the president would itself be a violation of the Constitution.

Another point worth noting is that Article 248 grants immunity to the president from being prosecuted in any court, which means that courts within and outside the country. Therefore the argument by certain circles that the immunity pertains to only internal courts is not legitimate. Similarly, the governor Sindh also enjoys immunity under the same article.

The prime minister has unequivocally said that he is ready to reopen Swiss cases if the immunity to president is withdrawn by parliament because it was only the constitutional prerogative of the legislature. Honestly speaking, one can hardly take issue with him on this question. The position taken by the government is in conformity with the Constitution. Further, the court has also not specifically ordered reopening of the Swiss cases against President Zardari. The court order was of general nature. The court also did not address the question of presidential immunity under Article 248. Therefore, to contend that the court has removed the immunity or has ordered the reopening cases against the president is downright misleading.

In regards to the allegation that the government has not removed the chairman NAB despite court orders for his removal, it is imperative to mention that according to the NAB Ordinance, the chairman NAB has a status of a judge of a high court and as such cannot be removed through normal administrative orders. His appointment is made for a certain period and his removal during that period can only be effected by making a reference to the Supreme Judicial Council. If the court has substantial grounds to prove his implication in illegal activities or his actions constitute a breach of the constitution, then the CJ may send a reference to the Supreme Judicial Council whose decision will be binding on every body. Adopting such a course would also meet the legal requirements. As is evident the government is not in a position to take any action against the chairman NAB and it needs to be understood by all the stakeholders and even the general public who is being presented with a wrong and distorted picture of the entire episode.

As far as action against the former attorney general is concerned, he has already filed a review petition in the Supreme Court and the matter has become sub judice. However, in his case, the action ultimately will have to be taken by the Pakistan Bar Council in the light of the SC decision on the review petition because like Army personnel, and judges the lawyers also have an accountability system of their own. The government, therefore, cannot be blamed of any slackness or mala fide intent for not initiating action against him.

In the light of the foregoing, it can be safely inferred that the government has shown utmost sincerity in implementing the SC decision and its response has been in consonance with the constitution. It deserves accolades for accepting the decision ungrudgingly despite the fact that the decision contained a number of infirmities. It will perhaps be pertinent to reproduce excerpts from an article published in The News on 25th January by an eminent lawyer Mr Babar Sattar who while defending the NRO decision and challenging some of the misperceptions about the court, did concede that the court had been selective in applying the principles of justice. He wrote, "The problem with our cynical mindset notwithstanding, the flawed perception that the judiciary and the military are working in alliance is also nourished by the deficiencies in the PCO judges and NRO rulings, as also pointed out by Sardar Raza Khan in his separate note. General Musharraf authored the NRO, yet we find no focus in the detailed judgement on how the author must be held accountable for his mala fide acts, even though it instructs the government to proceed against Malik Muhammad Qayyum. Such propensity of the court to ignore the individual who molested the constitution was evident even in the PCO judges case. While the court held the oath-taking judges accountable, it passed no instructions on how to bring the oath giver to book. The Supreme Court must bear in mind that notwithstanding ground realities and other extraneous considerations, selective application of principle is anti-thetical to the rule of law."

The prime minister has also dispelled the impression about clash between the state institutions maintaining that the government enjoyed cordial relations with other state institutions and that it wanted all the institutions to function within the confines of the role assigned to them by the constitution.

One would like to accept his words at their face value in view of the conduct of the government on the implementation of SC decision on NRO and also the signals emanating from other institutions in supporting the democratic system. .