𝐓𝐡𝐞 𝐂𝐨𝐮𝐫𝐭 𝐌𝐮𝐬𝐭 𝐄𝐧𝐜𝐨𝐮𝐫𝐚𝐠𝐞 𝐏𝐚𝐫𝐭𝐢𝐞𝐬 𝐭𝐨 𝐑𝐞𝐬𝐨𝐫𝐭 𝐭𝐨 𝐀𝐥𝐭𝐞𝐫𝐧𝐚𝐭𝐢𝐯𝐞 𝐌𝐨𝐝𝐞𝐬 𝐟𝐨𝐫 𝐑𝐞𝐬𝐨𝐥𝐮𝐭𝐢𝐨𝐧 𝐨𝐟 𝐭𝐡𝐞𝐢𝐫 𝐃𝐢𝐬𝐩𝐮𝐭𝐞𝐬: 𝐒𝐂

𝐓𝐡𝐞 𝐂𝐨𝐮𝐫𝐭 𝐌𝐮𝐬𝐭 𝐄𝐧𝐜𝐨𝐮𝐫𝐚𝐠𝐞 𝐏𝐚𝐫𝐭𝐢𝐞𝐬 𝐭𝐨 𝐑𝐞𝐬𝐨𝐫𝐭 𝐭𝐨 𝐀𝐥𝐭𝐞𝐫𝐧𝐚𝐭𝐢𝐯𝐞 𝐌𝐨𝐝𝐞𝐬 𝐟𝐨𝐫 𝐑𝐞𝐬𝐨𝐥𝐮𝐭𝐢𝐨𝐧 𝐨𝐟 𝐭𝐡𝐞𝐢𝐫 𝐃𝐢𝐬𝐩𝐮𝐭𝐞𝐬: 𝐒𝐂

A three-member bench of the Supreme Court has ruled in a recent judgment, authored by Honorable Justice Syed Mansoor Ali Shah, involving a procurement dispute that the courts should exhibit a pro-mediation bias, which means that preference should be given to alternative modes of resolution of disputes over the conventional litigation. This bias does not mean to favour one party over another, rather to encourage the parties to have resort to alternative modes of resolution at the first instance. This approach is not only helpful in harmonising and making the existing legal landscape more efficient, but it can also enable the parties  to resolve the disputes constructively and collaboratively. The parties can be happier at the end of  resolving the disputes through alternative modes rather than litigation in courts.

This was the approach the Supreme Court directed the courts to adopt while adjudicating a dispute, but the main issue in the event of which the Court ruled so was an issue of inconsistency between the procurement laws and clauses of bidding documents. In Punjab, the bidding documents embodied a clause which required the lowest bidder to submit two securities, performance security and additional performance security, while the successful bidder had to submit one security, the performance security. The Court held that apart from discrimination, this approach defies the logic as well, where the successful bidder has to submit lesser security than the lowest bidder who might not be successful. It should have been other way around if the law allowed. The Court further held that the guiding principles of procurement laws include fairness, integrity, transparency, prevention of misconduct, accountability, good management and control. By introducing a clause or rule beyond the procurement laws landscape, these principles might be defeated and violated.

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