Institute of Environmental Engineering & Research (IEER) (IEER is a WHO Collaborating Center) University of Engineering & Technology, Lahore Ph: 042-89029248 Web: wirw.uet edu ok/facuesfacutesinfo/denartment RI introductionsid=13 : Iie The Registrar, y UET, Lahore, No, _IEER-UET-2016-227 Dated: 8-04-2016 Subject Annotated/temized reply to the petition file by M/S Worldwide Scientific in Honourable Court of Syed Faheem ul Hassan Shah, Senior Civil Judge, Lahore (MIS Worldwide Scientific Vs UET, Lahore) Dear Sir, This is with reference to the above cited court case. Find attached the annotated/itemized reply to the points raised by M/S Worldwide Scientific, in his application to the hourable court All relevant record, in support of our viewpoint is also annexed with this letter. The next date of hearing is 15- 04-2016 Itis requested to depute legal advisor of UET to plead the case in the above cited court at the said date Sincerely yours 7 a a (Prof. Dr. Sajjad H. Sheikh) °< DIRECTOR ce 1. Mr Abdus Salam, Senior Law Officer PPRA. It is with reference to his telephonic request to send the reply to the petition of plaintiff and the relevant record.Itemized response by UET to the notice of WWS in the honorable court of Syed Faheem ul Hassan, Senior Civil Judge It is submitted to the honourable court that the pray of the plaintiff is not based on facts. He has misrepresented the facts and trying to evade his contractual obligation which he is legally bound to fulfill. Delay in supply of equipment has done irreparable loss to the educational and research activities of the University. The itemized response to_plaintiff_observation are presented hereunder: Para-I That plaintiff is @ proprietary concern and deals in supply of scientific instruments from abroad and till date have an experience of 20 years in providing and fulfilling the demands/requirements agreed between the parties for its supply. Needless to mention here that plaintiff has a blotless carrier in arranging and providing different instruments as per the demand. It may also be not out of place to mention here that services provided by the plaintiff have been up to the mark and commendable. WWS did not fulfill its contract in current case. That defendant number 2, through its publication in PPRA website invite tenders for the purchase and supply of different items, hence, plaintiff having good experience submitted tender regarding provision of different items according to requirement of defendant number 2. Plaintiff being lowest in rate, defendant no. 2 after opening the tender, decided to issue contract later to the plaintiff so as to provide the equipment as per details given in the contract. Finally, the defendant no. 2 agreed with the plaintiff for the provision of the following equipment ie. 1) Water purification system, 2) benchtop pH/conduetivity/DO meter; 3) Kjeldhal analysis system; 4) BOD incubator. response Itis correct (Purchase Order was issued on 19-11-2014 through PO No. IR/X1-4/544.) Para-3 ‘That defendant no, 2 and 3 having decided to provide job to the plaintiff, executed contract agreement dated 16-03-2015 regarding different items having contract no. 950 and 946 in whieh terms and conditions for import of equipment was finally determined. response Itis correct. (WWS signed CONTRACT (contract No. 946 & 950) with defendant No. 1-3 dated 16-03- 2015 for the supply of items at serial No. 1, 2 & 4) Para-4 That plaintiff after completion of the formalities, defendant no. 2 and 3, opened different LCs for procuring of equipment as per demand of the defendant no. 1 to 3. Since, item detailed at serial no. 3 was complete in-details and no misquotation or mistake existed thereto hence the said item was imported into Pakistan and supplied to the defendant no. 2 and 3. It is important to mention here that the equipment i.e. Kjeldhal analysis system was delivered to the consignee within the stipulated period as per agreement, imported from Germany under this HS code 9027.8000. ‘SrNo. ‘Equipment PON. Tssue date |_| Water purification system TRIXI-/S44 19-11-2014 2. | Bench top pH/conductivity/DO | IRIXI-4/544 19-11-2014 meter 3._| Kjeldhal analysis system TRIXIASaS 19-11-2018 4. | BOD incubator IRXIAISAa 19-11-2014 Page 1 of 4response ‘The details given in this para do not pertain to the case raised by the plaintiff (Kjeldhal Analysis System was supplied through HS. Code 9027.8000. It is important to mention here that at the time of opening of LC, this HS. Code was mentioned in LC document with the mutual understanding of WWS & defendant No. 2 & 3) Para-5 ‘That as far as item no. 1, 2 and 4 as detailed in para 4 above is concerned, the supplier who was from Latvia and Poland country had demanded certain corrections through their email letter dated 12-05-2015 and demanded the correction of HS code no, 8421.2100 despite of 9027.8000 which according to the said supplier was incorrect, hence, in the presence of the said fault, until and unless no remedial measures were taken the said item could not be supplied as per international custom tariff rules Correction demanded by the exporter LC fied 31D Latest shipment date LC field 4C Date of expiry [LC field 47A point 1 Provide the information about the insurance company’s data LC field 47A point 4 Shipment deliver this HS code 84212100 It is also important to mention here, that, under the international custom tariff rules, codes are provided to items, may be of any origin, the reason being that against the said code, custom authorities and import policies certain taxes, which are leviable against the said equipment and there are no chances of evasion of tax in presence of the correct HS code numbers while as per policy in the government sectors/institutions are exempted from tax Needless to mention here that, if items are exported or imported against wrong HS code number in LC, hence, in the said circumstance, the importing country or the person would not accept the same and shipment could not be delivered. response ‘After the acceptance of Purchase Order (PO No. IR/XI-4/544) by WWS and after signing of contract agreement, two LCs were opened. LC No. 012800245015 dated 19-03-2015 for equipment at serial No. 1 and LC No, 012800419615 dated 07-05-2015 for equipment at serial No. 2 & 4, It is important to mention here that LCs are always opened when some firm/contractor accept all terms & conditions laid down in contract. In this regard, these LCs contain LC expiry dates, details of insurance company and HS, Code as well. It is important to again mention here that at the time of opening of LC, this HS. Code 9027.8000 was mentioned in LC document with the mutual understanding of WWS & defendant No. 2 & 3 (Copy of LCs attached). This HS. Code 9027.8000 is for the import of “OTHER INSTRUMENTS AND APPARATUS”. Since the Tender from defendant No. 2. was titled “Purchase of Lab Equipment on C & F basis for IEER”, therefore this HS. Code was mentioned in LC document. This HS code is used for import of all scientific equipment by UET and on the same code the plaintiff provided equipment at serial no. 3. Hence objection is not valid. Para-6 That plaintiff through its letter 4-06-2015, after having received objection from the exporter | | through email dated 12-05-2015 made a request to defendant no. 3 for doing the needful, letter written by the supplier objections are reproduced as preceding para. Needless to Page 2 of 4mention here till date the requirement/correction/change in HS code no. demanded by the supplier at till date has not been attended to by the defendant no. 1 to 3, with the result that the equipment to be supplied to them could not be undertaken, The reasons have already been explained in the preceding para, response It is pertinent to mention here that LC for Water Purification System was opened on 19-03- 2015. Plaintiff never objected to it during two and a half month and wrote letter just 15 days before the expiry of LC. This clearly shows that he was not serious in supplying the equipment. In addition, no such objection was raised for equipment at serial no. 2 and 4 meaning thereby that he has no such objection, though baseless, for these two equipment. (Note: Plaintiff's letter dated 04-06-2015 was only for “Water Purification System and not for other equipment at serial No 2 & 4) Para-7 That plaintiif through its letters dated 4-06-2015 had requested the defendant no. 1 to 3 to meet with the requirement of the principle company/exporter i.e. to correct the existing faults so that the exporting party can deliver the equipment after its process in Pakistan for the use of the defendants as per their demand. response These demand of the plaintiff was not in line with the agreement signed and conditions agreed by him with the respondent no. 2 and 3. Para-8 That instead of meeting with the requirement and accepting the fault on their behalf thereby correcting the same, the defendants had been adamant and had been avoiding to do the needful which has resulted in nonfulfillment of the contract granted to the plaintiff. response The pray of the plaintiff is in grave contradiction with the already signed agreement with defendant no. 2 and 3. Hence not acceptable. Para-9 That plaintiff through their letter 22-03-2016 informed the defendants no. I to 3 that for a number of times we look up the matter with defendants no. 1 to 3, but for reasons best known, they failed to undertake the request made for change of HS code from 9027.8000 to 8421.2100. hence, due to delay in adamant attitude defendants no. 1 to 3, the exporting party ‘was now reluctant even accepting the LC but on our insistence, they agreed to send the equipment provided we send them cash for the import of required equipment but on the other side in spite of best efforts defendants no. 1 to 3 did not agree with this proposal even though we had requested them in order to show our bonafides that plaintiff are willing and ready to purchase the said item on cash payment if an undertaking is given by the defendants that they would accept the equipment and make payment the moment itis delivered to them. Because the principal company/importer is reluctant/disagree said shipmenvequipment due to the elapse of period response This demand of the plaintiff is in grave violation of the clause 8 of the contract agreement, signed by him, that states that the equipment will be supplied on Cost and Freight (C&P) basis. Now that the plaintiff demands that he will supply the equipment by other means, which is a violation of his already signed agreement, Hence not lawful, Para-10 That defendant no. 2 has now issued a letter dated 28-03-2016 thereby putting the plaintiff to notice that in case of failure to meet the contractual obligation of their behalf, defendant no. 2 will be well within his rights to forfeit the bid security already held by them on the ground of unfurnished equipment supply as detailed in section 17 of the agreement. Needles to mention here that in spite of the fact, the defendants no, 1 to 3 were and are at fault, but even then, they have issued a show cause notice extending their intentions to dilute the contract and as a result of that forfeit the security amount which they could not do otherwise Page 3 of 4as no fault of the plaintiff. It has also been observed through letter dated 28-03-2016 that in case of non-fulfillment of the contract, defendant no. 1 to 3 reserve the right to issue to defendant no. 4 to blacklist the plaintiff for all future so that they cannot even early their livelihood through lawful means. It is important to mention here that as per terms and conditions of tender, the defendants no. 1 to 3 were bound to open LC in favor of the principal for a minimum sum of Rs 4000 Euro, otherwise the same would not be acceptable, which has been violated by the above stated defendant, response [It is important to mention here that plaintiff was given ample time to resolve the issue. In this regard, Minutes of Meeting dated 18-03-2016 were issued to them demanding their final decision for the supply of equipment at serial No. 1, 2 & 4. In that response plaintiff in his letter dated 22-03-2016 refused to supply equipment through LC which was clear violation of contract. LC on which plaintiff had objections (for Water Purification System) was worth of 4500 Euro, and not less than 4000 Euro as plaintiff mentioned. Thus plaintiff is misleading the honourable court and wasting time of both the honourable court and the UET employees. Para-11 | That cause of action accrued to the plaintiff firstly when the contract was executed between plaintiff and defendant no. 1,23 and thereafter on 28-03-2016 through which they have vividly shown their intention of firstly cancelling the contract of the plaintiff and as a result thereof for forfeiting the amount held by them as security without any fault on the part of plaintiff and also making a demand to defendant no. 4 to blacklist the plaintiff. response — | The statement of plaintiff is not based on facts. Defendant No 2 did not mention anything regarding “Cancelling the Contract” in his letter dated 28-03-2016, However, defendant No 1 to 3 can forfeit the Bid Security and can recommend blacklisting the WWS, to PPRA, due to the fact that it failed to meet its written agreement and resulted in irreparable damage to the research and teaching activity of the University of Engineering & Technology, Lahore In view of the above submissions, it is prayed 1. The case of the plaintiff may be discharged 2. The honourable court is requested to direct the plaintiff to supply the unfurnished equipment as per his contract obligations and conditions laid down thereof in the signed contract agreement without further loss of time. This delay has already resulted in irreparable loss to the educational and research activities of this department Page 4 of 4