PESHAWAR: A Peshawar High Court bench on Wednesday set aside the provincial chief minister`s approval to the award of the contracts of five mega projects in Peshawar and Mardan districts to the National Logistic Cell by declaring it against the provisions of the KP Public Procurement Authority Act.

Chief Justice Yahya Afridi and Justice Abdul Shakoor ruled, `The sanction accorded to the impugned five projects by the worthy Chief Minister of Khyber Pakhtunkhwa is against the clear provisions of the KAPPRA Act and the settled principles of law and are devoid of legal force, and thus set aside.

It added that the mode and manner in which the approval of the Eve projects had been granted to the NLC by the provincial government through direct sourcing was in complete violation of the spirit of the KAPPRA Act and KAPPRA rules.

The development came as the bench disposed of a petition filed by the KP Contractors Association challenging the relevant rules allowing the direct award of contracts of major development projects to government organisations, including NLC and Frontier Works Organisation (FWO).The petitioner had requested the court to declare illegal and without lawful authority the awarding of the contract through direct contracting to NLC in respect of the projects, including flyover at the Warsak Road-Ring Road intersection; Level-II flyover at GT Road and Ring Road intersection (Pir Zakoori flyover), Peshawar; road rehabilitation in Peshawar city; Peshawar uplift programme; and flyovers at Jawad Chowk and Katlang Chowk, Mardan.

Few days ago, the bench had reserved its judgment after completion of arguments and pronounced the verdict on Wednesday.

Following filing of the petition early this year, the court had stayed the awarding of work orderin relation to the said projects.

In its detailed judgment, the bench turned down the petitioner`s prayer of declaring the rulerelated to direct sourcing of contracts to government organisations unlawful.

The bench ruled that the provisions contained in Rule 3(2) (C) of the KP Public Procurement of Goods, Works and services Rules, 2014, were in accordance with the KPPRA Act 2012.

`The direct sourcing of public procurements of works is permissible under sections 14 and 33 of the KAPPRA Act, read with Rule-3 of the KAPPRA Rules. However, the direct sourcing of public procurements of works being an exception to the general rule of open bidding, the conditions enumerated for the same under the KAPPRA Act and KAPPRA Rules are tobe strictly followed.

The bench also declared that the Peshawar Development Authority could not be a procuring entity for a project in Mardan district.

It further ruled that the `government` envisaged under Section 14 of the KAPPRA Act meant the cabinet of the province.

The court ruled that in case the Government intends to grant the five projects through direct sourcing, the objecting note of the Secretary Finance duly endorsed by the chief secretary of the province, both dated Nov 16, 2016, have to be placed before the cabinet, while deliberating upon its approval under the enabling provisions of the KAPPRA Act.

Furthermore, the bench directed that in case the provincial cabinet agrees to grant direct sourcing, the reasons for the same are to be published in print media, as per requirements of Sub-section-2 of Section-14 of the KAPPRA Act.

The bench declared the honoraria of Rs1 million each granted to the local government secretary and the PDA director general in a previous project beyond the terms of their appointments and rules and thus, illegal.

It added that in case the same had been disbursed, it should be returned to the exchequer.

The bench observed that despite the initiation of the approvalfor the projects by the Secretary C&W, the PDA was made the procuring entity and the PDA was also made the procuring entity for projects outside the territorial limits of Peshawar and in the instant case for a project in DistrictMardan.

It added that the sanction of the five projects by the provincial cabinet was obtained after the chief minister approved them and that, too, during the pendency of the petition in question.

`The negotiated rates approved for the Eve projects awarded to NLC were beyond the governmental approved Market Rate Schedule (MRS) of 2016. The rates for the Eve projects approved by the worthy Chief Minister, does not justifiably reason the objecting note of the worthy Secretary Finance duly endorsed by the worthy Chief Secretary both dated 16.11.2016 regarding the exemption from the Finance Department Notification dated 10.04.2016.

The benchadded thatthe reasons for the direct sourcing of the five projects to the NLC required to be published under Sub-Section (2) of Section 14 of the KAPPRA Act had not been complied with.

It observed that when the KP advocate-general was confronted with the said noted manner in which the approval was granted by the provincial government to the impugned five projects, he undertook to ensure that the provincial government would consider the impugned contracts afresh strictly in accordance with the law and in particular the provisions provided for direct sourcing in the KPPRA Act and rules.

Advocate-general Abdul Lateef Yousafzai further said the respective departments would the procuring entity in seeking the said public procurements.