SC reject Chinese firm plea on Dasu project


SC reject Chinese firm plea on Dasu project ISLAMABAD: The Supreme Court on Tuesday rejected a Chinese company’s request for participating in the tendering process for building the World Bank-funded 4,320MW Dasu hydropower project on the Indus in Kohistan district of Khyber Pakhtunkhwa.

“For the reasons to be recorded later, the appeal is dismissed,” Chief Justice Anwar Zaheer Jamali said while dictating an order.

The apex court had taken up the appeal of Messrs Power Construction Corporation of China Limited (PCCCL) against the June 29 verdict in the intra-court appeal in the Lahore High Court, which had also rejected the petitioner’s request to suspend the operation of a disqualification from the bidding process.

State-owned company has 30 subsidiaries and has been active in industry since 1950s

Representing the PCCCL, Advocate Salman Aslam Butt argued before the court that the Water and Power Development Authority (Wapda) was not bound to act upon the recommendations of the World Bank because this was against the municipal laws — the Public Procurement Regulatory Authority rules.

“There can be [certain] conditions but we have to see whether such conditions are as per our Constitution and the municipal laws,” he said, adding that conditions put forth by the bank had to be seen in the context of the municipal laws.

Additional Attorney General Mohammad Waqar Rana argued that under Article 166 of the Constitution, the executive authority could extend guarantees to any institution.

In 2014, Wapda had announced its decision to undertake an electricity generation project for the first phase of which the International Development Association (IDA) — which is part of the World Bank Group — had approved a credit of $588.45 million.

In August 2014, Wapda’s project director for the scheme issued pre-qualification documents (PQD), inviting applications from interested parties for pre-qualification for the main works-I (MW-I) — including the main hydraulic structure, spillway, low-level outlets, river diversion and hydraulic steel structures — as well as MW-II, including underground power complex, tunnels and hydraulic steel structures.

But the PCCCL, through its petition, claimed that the PQD had certain ambiguities, specifically in certain provisions of the instructions given to applicants, and requested the project director for a clarification through a series of letters in Sept 2014.

On March 30 this year, the project director disposed of its inquiries and informed the company that it had been disqualified from the pre-qualification process for the MW-I and MW-II on account of directions from the World Bank.

But, according to the petition, the respondents failed to provide the precise reasons for the disqualification of the company from the pre-qualification process. Subse­quently, the company challenged its disqualification through an intra-court appeal, but the LHC rejected the plea.

In its petition, the PCCCL argued that non-interference on the part of the high court in the face of “manifest illegality” and “denial” of the petitioner’s fundamental rights to the equal protection of the law and due process enshrined under the Constitution, merely on the ground that it had no power over IDA/World Bank or jurisdiction to look into the legality of the WB guidelines, could not be sustained and was “bad in law”.

Even otherwise, the parties, through an agreement, could not override or curtail the legal and constitutional rights of a person, the petition said, adding that the provisions of due process and transparency applied equally to the IDA/World Bank.

The disqualification of the company on account of “a dictated exercise of powers” was equivalent to “an arbitrary exercise of executive authority” and, therefore, liable to be set aside on this ground alone, the petition argued.

The Chinese company said it was a state-owned enterprise with about 30 subsidiaries and had been active in the industry since the 1950s. It was responsible for more than 65 per cent of China’s hydropower projects, including the world’s biggest hydropower project — the Three Gorges Hydropower Project.


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