PESHAWAR: A Peshawar High Court bench on Thursday issued a stay order stopping the provincial government from issuing work orders for the five major projects to two government organisations.

The bench asked the government to maintain status quo on the matter until May 16 and adjourned hearing until then into the petition of the KP Contractors Association against the ‘direct’ award of contracts of major projects to the National Logistic Cell and Frontier Works Organisation without any bidding.

The bench also issued notices to the respondents, including provincial government through the chief secretary, establishment secretary, KP Public Procurement Regulatory Authority through its managing director, communication and works secretary, Peshawar Development Authority, NLC, FWO, interior secretary and Pakistan Engineering Council, asking them to explain their respective positions on the matter.

In the petition, the Khyber Pakhtunkhwa Contractors Association contended that the relevant rules on the direct award of contracts to government organisations were in conflict with the law guaranteeing transparency in public procurement.

Seeks govt’s explanation on ‘direct contracting or sourcing’ to own organisations

They requested the court to declare direct contracting or sourcing to the government organisations over private sector organisations through Rule 3 (2) (C) of the KPPPRA Rules ‘‘illegal, discriminatory and mis-procurement’ in terms of section 2 (1) of the KPPRA Act.

The petitioner also sought the court’s orders to declare Rule 3(2) (C) of the said Rules against the spirit and purpose of the KPPRA Act and in conflict with the Act.

It prayed that the court may also direct the provincial government to harmonise the said Rules with the KPPRA Act.

Syed Arshad Ali, lawyer for the petitioner, said the KPPPRA Act was enacted in 2012 for ensuring transparency, accountability and fairness all procurements shall be conducted so as to maximize competition and to achieve value of money.

He said the government awarded the contracts of the construction of Bab-i-Peshawar Flyover at Phase III Hayatabad, widening of Jamrud Road and construction of Service Road along with the Ring Road to the NLC and FWO, while direct contracts of several other major projects were also awarded to NLC.

The lawyer said the government had framed the KP procurement of Goods, Works and Services Rules 2014 and that Rule 3(2) of them provided deviation from normal methods of advertisement and response in the event of an emergency as provided for in the National Disaster Management Act, 2010 and where a particular procurement is of sensitive nature and is related to national security.

He said the bone of contention had arose due to insertion of section 3(2) (C) of the rules, which provided direct sourcing to a government organisation for provision of work, services or goods under a cost plus or fixed contract provided that the public-sector organisation should not involve a private sector enterprise as a partner or in the form of a joint venture or a sub-contractor.

The lawyer said the KPPPRA Rules, by virtue of Rule 3(2) and its sub-rules had exceeded the parameters of their parent statute.

He added that these rules created an unfair business environment, wherein government organisations had an unfair advantage over private sector organisations.

Published in Dawn, April 28th, 2017