Devan Narayanan Raman [Messrs Devan & Associates (Kuala Lumpur)] v Andrew Heng Yeng Hoe, Roger Leong Chun Lim and Atiqah Yasmin Sedek (Messrs Zain Megat & Murad (Kuala Lumpur) (SUIT NO. WA-22C-94-09/2020)

2.1 the Plaintiff’s Bid was disregarded for non-compliance of mandatory criteria which was never disclosed to the Plaintiff;

2.2 the Tender was called by the Defendant which was alleged to be a Government Linked Company (“GLC”) formed for the development of Putrajaya and as such this was a public project which could only be awarded by “Open Tender”;

2.3 the rejection of the Plaintiff’s bid was done on a concealed criteria;

2.4 to disregard the Plaintiff’s bid is unfair and an actionable cause of action in an open tender and using the concealed criteria;

2.5 as a party in an open tender they had a legitimate/reasonable expectation that their bid will be considered because they had complied with all the criteria which was disclosed. [3] It is also contended by the Plaintiff that upon seeing the advertisement and being registered with Lembaga Pembangunan Industri Pembinaan Malaysia (“CIDB”) as a Grade 7 Contractor, the Plaintiff was interested to bid for the tender as it was a “tender Terbuka”. [4] The Plaintiff therefore claims against the Defendant as follows:

Damages of RM180,000,000.00;

Alternatively costs of RM1,421,422.35 which was expended by the Plaintiff;

General damages; 3

Exemplary damages;

Interest on total judgement sum at the rate of 8% per annum from 17.02.2020 until full settlement;

Costs; and

Any relief which is deemed suitable by this Honourable Court. [5] The Defendant states in its Statement of Defence that:

The Plaintiff’s claim is barred by laches of more than 60 months and the Plaintiff is estopped from making a claim against the Defendant herein;

The Plaintiff is not entitled to claim as there exist no implied contract/collateral contract or grounds for any reasonable expectation. In any event, the Defendant had fairly considered the Plaintiff’s tender bid;

The award of the Project to Sunway is not a sham as Sunway has fulfilled the overall requirements of the tender and has offered the lowest bid among all contractors who fulfilled the Defendant’s requirements;

The Plaintiff’s bid was not selected by the Defendant due to the Plaintiff’s failure to fulfil the Financial Capability Criteria;

The Defendant is not entitled to claim for any loss of profit and had in fact agreed to bear all costs and/or expenses incurred for the preparation and submission of the tender documents when tendering for the Project. [6] It is further contended by the Defendant that only tenders from Malaysian contractors who fulfil the following criteria will be qualified for assessment and evaluation: - 4

Registered with Construction Industry Development Board Malaysia (CIDB) under Grade 7;

Possesses the relevant experience and proven track record of having successfully completed construction works for Airport Terminal or High-Rise Building (minimum ten (10) storey) under

Possesses the relevant experience and proven track record of having successfully completed construction works with Contract Value of not less than RM 100 million in a single contract within the last 8 years for Airport Terminal, Office Building, Mixed-Used Commercial Development, Hotel or

Joint Venture / Consortiums are not allowed. [7] It is also alleged by the Defendant that the Plaintiff had

7.1 attended a project briefing held on 12.03.2013. Pursuant to the project briefing, a document known as the “Project Briefing to Invitation to Bid” (“Tender Briefing Document”) was issued to the Plaintiff and all contractors / tenderers, who attended the tender briefing;

7.2 written to Defendant and stated their interest to carry out the Project. The Plaintiff thereafter purchased the tender documents and was invited to attend a site visit together with the other interested contractors/tenderers vide the Defendant’s letter dated 02.04.2013; 5 7.3 based on the Tender Briefing Documents, the Plaintiff, together with other contractors / tenderers were required to submit three separate envelopes containing supporting documents to the Defendant;

7.4 these 3 envelopes contain the bidder’s details/proposals for 3 separate evaluations, i.e. assessment and evaluation for the Mandatory Requirement Criteria, Technical and Financial Capability Criteria and Commercial Evaluation Exercise Analysis and Court’s Findings [8] This Court has perused the document entitled “PROJECT BRIEFING INVITATION TO BID” which detailed the terms for the Tender, and in particular the following clauses therein which the Plaintiff has urged this Court to consider being: On the 6.3.2013, the Plaintiff sent the Defendant a letter confirming they will be attending the Project Briefing which was held 12.3.2013 a. Clause 7 –

7.0 QUALIFICATION CRITERIA Only Malaysia Registered Contractors who fulfil the following requirements will be considered:  Must be registered with Construction Industry Development Board (“CIDB”) under Grade G7.  Must posses the relevant experience and proven track record of having successfully completed construction works for Airport terminal or High-Rise Building (minimum 10 6 storeys) under Office Building or Mixed-Used Commercial Development or Hotel or Hospital.  Mus possess the relevant experience and proven track record of having successfully completed construction works with Contract Value of not less than RM100 million in a Single Contract within the last 8 years of Airport Terminal or Office Building or Mixed-Used Commercial Development or Hotel or Hospital.  Joint Venture/Consortiums are NOT allowed. b. Clause 8 8.0 TENDER EVALUATION EXERCISE The evaluation exercise shall be carried out in three (3) stages: A STAGE 1 – MANDATORY REQUIREMENT CRITERIA The MANDATORY criteria are to ensure that Tenderer are serious in their bid submission both able and willing to provide the necessary back-up to prove their financial and organizational standing. NON-COMPLIANCE to any of the mandatory requirement after (1) clarification sought, shall result in the Tendered to be disqualified from further evaluation. Tenderers shall be given tow (2) working days in respond to any clarifications raised. The checklist of mandatory requirements is shown in Appendix 5. B STAGE 2 – TECHNICAL & FINANCIAL CAPABILITY CRITERIA 7 Stage 2(a) The technical capability criteria are to assess Tenderers’ competency in the areas of Planning Method Construction, Quality Control, Previous Experience and manpower, material & machinery resources. Stage 2(b) The financial capability assessment is based on the Tenderer’s available funds/facilities to support the project. Assessment on the financial capability of each option is based on the financial data provided. The checklist of Financial Capability Criteria is shown in Appendix 7. C STAGE 3 – COMMERCIAL EVALUATION EXERCISE Commercial Proposal of technically capable Tenderers only will be opened and evaluated. Submission of commercial proposal shall include all forms appendices, attachments and references as per Volume 5 of the ITB. The Commercial Proposal shall be evaluated on their completeness. In the event there is any discrepancy between the original and copies thereof, then the prices and particulars as indicated in the original tender shall prevail. c. Clause 9 9.2 Tender participation The Tenderers are, required to purchase tender documents for all Packages (packages 1, 2, 3 and 4) and to participate in 8 bidding of all four (4) packages. Tenderers who fail to comply with this requirement, will result in automatic disqualification.

9.2 Documentation Fee A non-refundable Documentation Fee of Ringgit Malaysia: Twenty Thousand (RM20,000.00) per set of 4 packages in the form of Banker’s Draft is required for the purchase of the tender documents in favour of Putrajaya Holdings Sdn Bhd [9] It is undisputed that the technical and commercial proposals are submitted in 3 separate sealed envelopes all at one time on the tender closing date, with the 3rd document containing the supporting documents and details for the Commercial Purposes (3rd Sealed Envelope). [10] It is also been testified by Zaidatul Ahmad Zubel (“DW-2”), the Co Chairman of the Defendant’s Technical and Commercial Evaluation team, that the tender evaluation exercise was to be carried out in 3 stages, with stage 1 being the mandatory requirement criteria which checklist was to be found in Appendix 5 of the Tender Briefing Document, and stage 2 was to be on the Technical and Financial Capability Criteria and finally stage 3 which was the Commercial Evaluation Exercise. The Tender Briefing Document at article 8 thereto also made it clear that the 3rd Sealed Envelope will only be opened for those who are considered capable tenderers and passes the first 2 stages. [11] DW2 also testified in detail on the procedure for the tender bid evaluation process and exercise which was carried out and testified that the Finance team in the same had “..carried out the assessment 9 based on the Plaintiff’s 3 years audited accounts and came to the conclusion that the Plaintiff did not meet the financial ratio required by the Defendant and had therefore failed the Financial Capability Assessment” and that “..When the Plaintiff fails the Financial Capability Assessment, it would also mean that the Plaintiff did not satisfy the Technical Requirement”. [12] Accordingly based on the above, the facts before me show that the Defendant did not open the 3rd Sealed Envelope to evaluate the commercial proposals of the Plaintiff. Was there a concealed Criteria in the Tender Bid [13] Based on the aforesaid clauses 7, 8 and 9 of the “PROJECT BRIEFING INVITATION TO BID”, the Plaintiff submits that:

there was no requirement / criteria / benchmark stated in the “Project Briefing on Invitation to Bid”, as well as to what was the current ratio, debt equity ratio, facilities or average turnover and that the Defendant had never informed the bidders of any requirement to meet these items;

(ii) the Project Briefing on Invitation to bid document clearly stated the requirements and qualifications of parties that was eligible to bid and that based on this only parties that could comply with the requirements would proceed to the next stage of paying for and obtaining the invitation to bid;

(iii) the Plaintiff had complied with all the requirements of the invitation to bid and submitted a bid in the required format to 10 the Defendant which was accepted by the Defendant on the 9.7.2013;

(iv) based on the pleaded Defence, the Plaintiff’s bid was never opened or evaluated because the Plaintiff failed the criteria for the Financial Capability;

there was a hidden criteria/benchmark in passing the Financial Capability Assessment imposed by the Defendant in this case that was never informed to any of the tenderers;

(vi) to secure a bank guarantee and letter of support of credit facilities from a licensed bank shows the Plaintiff had the financial means to do the Project [14] I have firstly observed and do find that the Plaintiff had submitted the following documents in fulfilling the Mandatory Requirement Criteria:

A “Tender Bond Bank Guarantee” from Bank Pembangunan Malaysia Berhad (“BPMB”) dated 03.07.2013 for the sum of RM1,000,000.00, valid for the period of 240 days starting from 09/07/2013, as seen at page 251 of Bundle B;

An undertaking by BPMB dated 03.07.2013 to provide a Bank Guarantee for Performance Bond for the sum of RM25,000,000.00 as shown in page 252 of Bundle B;

Four “Letters of Support” all dated 26.06.2013 respectively from BPMB to the Defendant where BPMB has approved credit facilities for all 4 packages amounting to RM56,000,000.00 for the purpose of the tender as found in pages 156 to 159 of Bundle B 11 [15] This Court has next noted that, PW-3, Taherah-Zahra binti Shorbaini, had in her witness statement at Q&A 5, admitted to having possession of the Tender Briefing Document since the tender briefing and had taken note of the briefing details at the Tender Briefing, which included a question and answer session, as well as being given the project briefing documents, which can be found at pages 214 to 241 of the Common Bundle of Documents i.e Bundle B. [16] Under cross examination, PW 2 had also admitted to having knowledge of the process of the tender evaluation ever since the tender briefing stage. [17] I also find that according to the evidence of the Defendant’s letter of 30.5.2013, found at page 167 of Bundle B, that it appears in the course of the tender exercise, there were more than nine tender clarifications issued to all tenderers who expressed interest to participate in the Project. In this respect, I have also seen a sample of the said clarification dated 12.4.2024, which can be seen at page 193 of Bundle B, and find that various bidders had made certain queries and /or seek clarifications on numerous issues and that the Defendant would then respond vide the said tender clarifications to each of the said queries and/or clarifications. [18] It is also in evidence that thereafter following the evaluation of the tender proposals, the Defendant issued a letter to the Plaintiff on 14.03.2014, informing the Plaintiff that their bid was unsuccessful as evidenced by the Defendant’s letter at page 146 of Bundle B, and that consequently Sunway Construction Sdn Bhd (“Sunway”) was awarded with the contract for all 4 packages of the Project by the 12 Defendant’s subsidiary, Putrajaya Bina Sdn Bhd with a contract sum of RM1,609,600,000.00, pursuant to a Letter of Award dated 11.09.2015 as shown in Bundle B page 253. [19] In this respect, I have especially evaluated the evidence before me with regards the alleged hidden criteria/benchmark in passing the Financial Capability Assessment which the Plaintiff claims was imposed by the Defendant and which was never informed to any of the tenderers. To this the Plaintiff referred to the evidence of DW1 where she had testified that “...The benchmark of financial capability assessment is the Defendant’s strategy, not to be exposed to the tenderer”. [20] Under the document entitled “Project Briefing Invitation to Bid”, the Financial Capability Criteria Checklist appears in Appendix 7 and refers to various items as follows: - Item Description A NET WORTH / CONTRACT SUM B CURRENT RATIO (Current Assets / Current Liabilities) C DEBT EQUITY RATIO (Total Liability / Net Worth) D FACILITIES (Fund Available) CONTRACT SUM E AVERAGE TURNOVER / CONTRACT SUM [21] At trial, DW3, Yap Siew Leng, had in her Witness Statement, testified that the Plaintiff did not meet the Defendant’s required “Net 13 worth/Contract Sum” ratio of 10%, the Defendant’s required annual turnover criteria where she said the turnover must be equivalent to or more than 40% of the Estimated Contract Sum and finally Defendant’s required “Credit Facilities/Contract Sum” ratio of 15%.”. The Plaintiff submits that this ratio of 10%, 40% and 15% as stated by DW3 was never disclosed to the Plaintiff and never stated in the documents that was furnished to the Plaintiff. [22] From all of the above, it can be seen that much ado was made by the Plaintiff on the above issues including but not limited to the point that the Defendant did not disclose any details or requirements with regards the Financial Capability Criteria Assessment. After assessing the evidence, I find, from the facts before this Court, that the benchmark of the Financial Capability Criteria Assessment was not disclosed to the Plaintiff but was also not disclosed to all the other tenderers as well. [23] Thus, the alleged hidden criteria/benchmark in passing the Financial Capability Assessment which the Plaintiff claims was imposed by the Defendant and which was also never informed to any of the tenderers, shows in my view that the Defendant had not acted arbitrarily, irrationally or that it was discriminatory in any sense. [24] It is also in evidence that the Plaintiff did not avail themselves of the opportunity to seek the clarifications as aforementioned where PW-3 had admitted during her cross examination that the Plaintiff has never sought clarifications from the Defendant regarding how the Financial Capability Criteria Assessment would be carried out. 14 [25] Consequently, I further hold from a consideration of the above documents and the evidence referred to by the aforesaid witnesses at trial, that the rejection of the Plaintiff’s bid was not done on a concealed criteria, as I find that the Plaintiff had ample opportunity at the Tender Briefing, from the project Briefing Document and from the respective tender clarifications, more than ample time and opportunity to seek any clarifications that maybe required. [26] In concluding this issue, it is my judgment that the Defendant had acted fairly towards all the tenderers including the Plaintiff. Thus, there was no issue of unfairness or biasness on the part of the Defendant and I hold that the Plaintiff should not now be able to allege that the Defendant had not informed the bidders of any requirement to meet in respect of these items after failing to avail themselves of the opportunity to seek any clarifications they may so deem fit on the Financial Capability Criteria Assessment. [27] In any event, I will now consider the rest of the issues raised by the Plaintiff. Whether the Plaintiff’s Claim Is Barred by Laches [28] At paragraph 25 of the Statement of Claim it is clearly averred that the Plaintiff was aware of the award to Sunway on or before 11.09.2015 and from the chronology of facts before me, it is clear that the Plaintiff had only initiated this Suit on 28.09.2020, which is approximately 5 years and 17 days from the date that Sunway was awarded with the contract. 15 [29] From the evidence at trial, during the cross examination of PW1, the said Plaintiff’s witness had acknowledged that there was a delay on their part in filing this suit but no explanation was however proffered by them as to this delay. [30] I agree with the Defendant’s counsel that the Plaintiff had failed to offer nor make any justification for the said delay in filing this Suit. To this end, pursuant to section 32 of Limitation Act 1953, the said Act empowers this Court to refuse relief in the event of acquiescence, laches or otherwise. Section 32 provides as follows: - [31] In the Court of Appeal case of Saad Marwi v Chan Hwan Hua & Anor [2001] 3 CLJ 98, the late Gopal Sri Ram CJA (later FCJ) had delivered the judgment in the said case which held “In the first place, there is s. 32 of the Limitation Act 1953. It provides as follows: Nothing in this Act shall affect any equitable jurisdiction to refuse relief on the ground of acquiescence, laches or otherwise. It is important to notice that the section speaks of "any equitable jurisdiction to refuse relief" without specifying the kind of relief that may be refused. It must therefore follow that the section permits laches to be used as a defence to the common law relief of damages. 16 Secondly, in Habib Bank Ltd v. Habib Bank AG Zurich [1981] 2 All ER 650, 666, Oliver LJ (as he then was) dealt with a contrary argument in a passage that merits recall: To this counsel for the plaintiffs retorts that that applies only where you are considering the doctrine of laches or acquiescence in relation to the assertion of equitable rights and not where you are considering the enforcement by equitable means of legal rights; and we were regaled with authorities on both sides for the purpose of establishing whether a plaintiff in a passing-off action is protecting a legal right or an equitable right. I have to confess that I detect in myself, despite the erudition displayed by both counsels, a strong predilection for the view that such distinctions are both archaic and arcane and that in the year 1980 they have but little significance for anyone but a legal historian. For myself, I believe that the law as it has developed over the past twenty years has now evolved a far broader approach to the problem than that suggested by counsel for the plaintiff and one which is in no way dependent on the historical accident of whether any particular right was first recognised by the common law or was invented by the Court of Chancery. Counsel for the respondents submits that laches is not, as a matter of pleading, available as a general defence to the appellant. According to him, the appellant's pleaded case has restricted the defence to the remedy of specific performance. Accordingly, it is not now open to the appellant to use it to defeat the award of damages made by the trial judge. With respect, I am unable to agree with this argument. When the defence is read as a whole, and when it is read in the light of the appellant's written submissions in the court below, it is plain that what the appellant was really saying was that the respondents' claim should be dismissed because of laches. …” 17 [32] After considering the case as a whole, it is my judgment that the defence of laches is applicable in this instance, as apart from the delay in initiating this Suit of more than 5 years, the Defendant would suffer prejudice as it was unable to retrieve documents and witnesses relating to the Project as a number of years has passed since the award to Sunway. To this one of the Defendant’s witness, had testified that that Defendant had “suffered detriment and was prejudiced in its Defence” as the Defendant “... faced great difficulties in locating all the tender documentation from all the contractor / tenderers”. [33] I quote and adopt Tan Keng Yong & Anor v Tan Hwa Ling & Ors [2022] 3 CLJ 274 where the Court of Appeal had stated “….it is unjust to consider the plaintiffs' claim for a remedy where they have by their own conduct might fairly be regarded as equivalent to a waiver or an estoppel. … …… .. Memories fade inexorably with time and important witnesses have passed on. It could be difficult to trace important documentary evidence that existed at that point of time. …” WHETHER THERE WAS ANY REASONABLE EXPECTATION AND/OR IMPLIED CONTRACT AND/OR COLLATERAL CONTRACT COMMITTED BY THE DEFENANT IN CONSIDEREING THE PLANTIFF’S BID 18 [34] This Court will now consider whether there was any reasonable expectation and/or implied or collateral contract by the Defendant’s conduct in considering the Plaintiff’s bid as contended by the Plaintiff. [35] From the facts before this Court, I find that the Defendant had adopted the process, as contained and specified in the Tender Briefing Document and the Invitation to Bid in that the Defendant had carried out the tender evaluation exercise in evaluating the stages for the Mandatory Requirement Criteria, i.e stage 1 and the Technical & Financial Capability Criteria i.e Stages 2 (a) and (b). [36] I have also observed that at paragraph 5.3 of the Invitation to Bid, it is expressly provided that “PJH reserved the right in its own interest to accept or reject any part of the Tender, to waive any formalities, to award the contract based on the base bid or alternative(s) and to award the contract to other than the Tenderer who submits the lowest bid”. [37] From the above document, I hold that there was no unfair treatment towards the Plaintiff as I agree with the Defendant’s submissions that it was clearly made known to all tenderers, including the Plaintiff, that the Defendant was not obliged to award to the lowest bidder. [38] It is clear from the pleadings that the rejection of the Plaintiff’s tender bid was based on the Defendant defence as follows: 19 [39] It is also in evidence from the trial, that the Plaintiff’s commercial proposals were never opened or evaluated because the Plaintiff had failed to fulfill the criteria for the Financial Capability as stated by DW2, the Co Chairman of the Defendant’s Technical and Commercial Evaluation team. [40] The Plaintiff had however submitted that the fact that they were able to secure a bank guarantee and letter of support from a licensed bank showed that the Plaintiff had the financial means to do the Project. With respect, I do not agree with this proposition as the requirements for the Plaintiff’s Financial Capability is as mentioned by DW3 in her Witness Statement, which is for the Defendant’s required “Net worth / Contract Sum”, annual turnover criteria must be equivalent to or more than 40% of the Estimated Contract Sum and the Defendant’s required “Credit Facilities / Contract Sum” ratio of 15%” which were allegedly not fulfilled by the Plaintiff. 20 Law [41] I now come to the law on tenders. In Cheng Keng Hong v Government of The Federation of Malaya [1966] 2 MLJ 33, Raja Azlan Shah J (as he then was) had held: “The law with regard to acceptance of a tender is perfectly clear. The unconditional acceptance of a tender by the employer binds both parties, and a contract is thereby formed, the terms of which are ascertainable from the invitation to tender, the tender, the acceptance, and any other relevant documents: see 3 Halsbury's Laws of England (3rd ed.) at page 423.” [42] Later in the case of Chin Ah Keow @ Chin Lai Sitt v Anggun Pintas Sdn Bhd & Ors [2015] 1 LNS 92, Ramly Haji Ali J (as His Lordship then was) had reaffirmed Cheng Keng Hong (supra) when His Lordship referred to the latter case and held: “The law on tender in Malaysia is similar to that of English law vis-a-vis the invitation for tender is basically inviting offerors and unless and until the offer is accepted, there is no concluded contract between the offeror and the offeree.” [43] From the above cases it can be gleamed that the law in our jurisdiction is that an invitation to tender for the Project given to the Plaintiff is at most an invite to the Plaintiff to make an offer and no concluded contract is formed unless the invitation to tender is 21 unconditionally accepted in which event only then will it bind both the offeror and the offeree. [44] Chin Ah Keow @ Chin Lai Sitt (supra) is also of relevance and of guidance in the case before me as the Learned Judge there had also inter alia in that case held that: - “The 2nd and 3rd Defendants' acceptance of the 4th Defendant's offer was in accordance with the provisions of section 6.10 and 6.11 of the Information Memorandum. The right of the liquidators in this case in accepting the 4th Defendant's offer is further provided in Section 2 and 3 of the Information Memorandum ie, they reserve the right to negotiate with one or more prospective tenderer at any time and the right not to select any tender and are under no obligations to select a tender or to provide an explanation for their decision. … In the present case, the Plaintiff's offer has not been accepted by the 1st Defendant. It is within the knowledge of the Plaintiff that the 1st Defendant has accepted the highest bidder at the close of the tender, thereby the Plaintiffs tender had been rejected or not accepted. Clearly, there is no contract ever existed between the Plaintiff and the 1st Defendant. The Plaintiff, in his submission-in-reply, admitted that "there is no legally binding contract between the 1st Defendant and the Plaintiff because another tender was accepted by the 2nd and 3rd Defendants". However, the Plaintiff submitted that the Plaintiff still has a contractual right i.e, that his tender which has conferred with the requirements of the Information Memorandum would be fairly considered together with other 22 conferring tenders. The Plaintiff argued that this proposition is clearly seen in the case of Blackpool and Fylde Aero Club Ltd. v Blackpool Borough Council [1990] All ER 25 where it was held by the English Court of Appeal that: - "In certain circumstances an invitation to tender could give rise to binding contractual obligations on the part of the invitor to consider tenders which conform with the conditions of tender... it was implied that if an invitee submitting a conforming tender before the dateline he would be entitled as a matter of contractual right to have his tender opened and considered along with other tenders that were considered...". The Court is of the view that the decision in that case (Blackpool and Fylde Aero Club) does not in any way help the Plaintiff in the present application. The "contractual right" mentioned in that decision refers to "contractual right to have his tender opened and considered along with other tenders". In the present case, there is no indication that the 2nd and 3rd Defendants has not opened up and not considered the Plaintiff's tender. The only evidence in relation to the Plaintiff's tender here is that the Plaintiff's tender at a price of RM8 million was the 6th highest and was not accepted by the 2nd and 3rd Defendants. There is no contractual right to the effect that the Plaintiff's tender must be accepted by the 1st Defendant. The Information memorandum clearly stipulates that the 2nd and 3rd Defendants are not obliged to accept the highest tender or even any tender at all. The contractual right mentioned in that case (Blackpool and Fylde Aero Club) also states that the tender must "conform with the conditions of tender". In the present case, the 2nd and 3rd Defendant are at liberty to reject (or not to accept) the Plaintiff's tender on the ground that it failed to comply with one of the requirements ie, the tender was not signed by the Plaintiff.” 23 [45] In my judgement the evidence before this Court has on a balance of probabilities shown

45.1 the Plaintiff’s tender bid was fairly considered together with other conferring tenderers;

45.2 the document entitled “Project Briefing Invitation to Bid” clearly stipulates that the Defendants is not obliged to accept the highest tender or even any tender at all;

45.3 the Defendant is at liberty to reject (or not to accept) the Plaintiff's tender on the ground that it failed to comply with one of the requirements. [46] Thus, based on the facts before me, I do hold that the process adopted was well within the Plaintiff’s knowledge and contemplation as well as being reasonably expected by all tenderers. The question of an implied or collateral contract by the Defendant’s conduct in considering the Plaintiff’s bid as contended by the Plaintiff therefore is dismissed. [47] I therefore hold that the Defendant has the right not to select any tender bid including that of the Plaintiff and that the Defendant is under no legal obligations to select a tender or to provide an explanation for their decision. Legitimate Expectation 24 [48] As mentioned earlier, the Plaintiff had also claimed that in an open tender they had a legitimate/reasonable expectation that their bid will be considered because they had complied with all the criteria which was disclosed and that the bid would be fair as it was an open tender issued by the public sector. [49] This Court is of the view that for such reasonable expectation to be imposed on the Defendant, such expectation has to be considered inter alia in light of whether the Defendant had fairly evaluated the Plaintiff’s bid in accordance with the process adopted for the evaluation of all tender bids for the Project. As I have held that the process for the evaluation of the tender bids, including that of the Plaintiff, was done properly and fairly, it is my judgment that it cannot be said that a legitimate/reasonable expectation has arisen in this matter before me. [50] Chin Ah Keow @ Chin Lai Sitt (supra) is again illustrative of the issue of legitimate expectation in such a situation, and of which I humbly adopt, where the Learned Judge had held: “What is legitimate expectation is a question of fact. In this respect the Court is in full agreement with the ruling made in the case of Food Corporation of India v. M/S Kambhenu Cattle Food Industries [1993] AIR SC 1601 In that case, the Supreme Court of India considered the legitimate expectation of a tenderer as follows: - "Whether the expectation of the claimant is reasonable or legitimate is a question of fact in each case. Whether the question arises it is to be determined not according to the claimant perception but in larger public interest wherein other more important consideration 25 may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision or public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny". "Thus, even though the highest Tenderer(s) can claim no right to have his Tender accepted here being a power while inviting Tenderer(s) to reject all the Tenderer(s) yet the power to reject all the Tenderer(s) cannot be exercised arbitrarily and must depend for its validity on the existence of cogent reasons for such action. The object of inviting Tenderer(s) for disposal of a commodity is to procure the highest price while giving equal opportunity to all intending bidders to compete. Procuring the highest price for the commodity is undoubtedly in public interest since the amount so collected goes to the public fund. Accordingly, inadequacy of the price offered in the highest tender would be a cogent ground for negotiating with the Tenderer(s) giving them equal opportunity to review their bids with a view to obtain the highest available price. A procedure wherein resort is had to negotiations with the Tenderer(s) for obtaining a significantly higher bid during the period when the offers in the Tender(s) remain open for acceptance and rejection of Tender(s) only in the event of a significant higher bid being obtained during negotiations would ordinarily satisfy this requirement. This procedure involves giving due weight to the legitimate expectation of the highest bidder to have his Tender accepted unless outbid by a higher offer within the time the offers remain open would be reasonable exercise of power for public good". The legitimate expectation as claimed by the Plaintiff in the present case must be considered in the light of other considerations such as the terms and conditions of the tender as contained in the advertisement and the Information Memorandum; the duty and 26 obligation of the 2nd and 3rd Defendants as liquidators in obtaining the highest return for the assets of the company in liquidation; the interest of creditors of the 1st Defendant; that the Plaintiff has failed to comply with certain condition of the tender by not signing the relevant letter submitting his tender.” [51] It is therefore clear whether the expectation of the Plaintiff is reasonable or legitimate is a question of fact in each case. This is to be determined not according to the Plaintiff’s perception but in the larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the Plaintiff. [52] Thus, in coming to my decision I must also consider this case in the light of other considerations such as the terms and conditions of the tender. [53] I have, with respect, considered the cases relied on by the Plaintiff which amongst others were Ahmad Zaini bin Japar v TL Offshore Sdn Bhd [2002] 7 MLJ 604, Blackpool and Flyde Aero Club Ltd v Blackpool Brought Council [1990] 3 AER 25, Southside Construction (London) Ltd v 734133 Ontario ltd [2005], Tarmac Canada Inc v Hamilton-Wentworth (regional Municipality) [1999], and Direct Underground Inc v Pickering (City) [2000]. [54] After reading the aforesaid cases, and for the reasons I have mentioned in my grounds, I find that the integrity of the tender process in the case before me was not compromised as the whole tender 27 process carried out by the Defendant was in my view fair and properly done. [55] As for the respective aforesaid Canadian cases referred to by learned counsel for the Plaintiff, I am not bound by the same and hold that the duty of good faith expounded in those cases do not in my view fit within our laws on tenders which is based on the English law. [56] To conclude, from my evaluation of the evidence before me, in particular the terms of the Tender Briefing Document which I have referred to in my judgment herein and the testimonies of the witnesses before this Court, and after weighing the principles mentioned in Chin Ah Keow @ Chin Lai Sitt (supra) and Food Corporation of India v. M/S Kambhenu Cattle Food Industries [1993] AIR SC 1601 referred to in the former case and the other cases referred to by the Plaintiff, I hold that based on the facts as presented to me, the Plaintiff has failed to prove to the satisfaction of this Court that a legitimate/reasonable expectation exists that the Plaintiff’s bid will be considered because they had complied with all the criteria which was disclosed. I will go on in so far as to hold that the Plaintiff’s bid was in fact duly considered but that they had failed the Financial Capability Criteria Assessment which eventually led to the Plaintiff’s bid being rejected at the Commercial Evaluation stage. [57] Accordingly I further hold that Plaintiff was also unable to prove on a balance of probabilities that the tender bid was unfair and thus the argument of a legitimate/reasonable expectation vis a vis that the open tender issued by the public sector was conducted unfairly is untenable. 28 THE AWARD OF THE TENDER TO SUNWAY [58] The Plaintiff had also raised in its Statement of Claim that the award of the tender to Sunway Construction Sdn Bhd was a sham but had not submitted on this point at the conclusion of the trial although its witness PW 3 had alluded to the said issue. [59] As the Plaintiff had not addressed this issue in its submissions, this Court will deem that it no longer wishes to pursue this head of claim. [60] Be that as it may, it was alleged in the Plaintiff’s Statement of Claim that the Plaintiff was purportedly informed by the employees of the Defendant that the Plaintiff’s bid was unsuccessful and that the Defendant was not proceeding with the Project but was later informed that the Project was awarded to Sunway and that the officers of the Defendant involved in the appointment process will get benefits / prizes from Sunway. [61] I however find that at the trial that these allegations were never substantiated by the Plaintiff and no evidence was produced in Court to corroborate the said contentions or to identify who the said officers or employees that had informed the Plaintiff were. [62] I therefore hold that an adverse inference should be drawn against the Plaintiff for failing to call the alleged employee(s) of the Defendant as a witness to testify on these alleged issues of the Plaintiff’s bid being unsuccessful and that the Project was not proceeding as well as to the award to Sunway as being a sham. 29 [63] Section 114(g) of the Evidence Act 1950 clearly provides: - The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS The court may presume: -

that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it; [64] In CGU Insurance Bhd v Asean Security Paper Mills Sdn Bhd [2006] 3 MLJ 1; [2006] MLJU 64; [2006] 2 AMR 641; [2006] 2 CLJ 409, the Court of Appeal had elucidated the concept of adverse inference as follows: - “[103] When gathered together and considered as a whole, the circumstances set out above establish beyond a reasonable doubt that the fire was the result of an act of arson. There is no doubt in our minds that this is a case where the warehouse was intentionally set fire to by DW10 and DW37 acting on the instructions of Balasingam and that this was not a case of spontaneous combustion as alleged by the respondent. There is also no doubt in our minds that on the evidence considered as a whole it was Balasingam who planned the fire and its execution and that it was 30 his intention to cause the respondent to make a false and fraudulent claim against the appellant. Here is a man who is repeatedly mentioned by more than one witness relating the part he played. The respondent's failure to call him although he was present in court (as may be seen from the notes of evidence) in the circumstances of this case warrants the drawing of an adverse inference under s 114(g) of the Evidence Act 1950. It has been held by the Judicial Committee of the Privy Council in Seth Maganmal v Darbarilal AIR 1928 PC 39 that an adverse inference may be legitimately drawn against a party who fails — to call as his witness the principal person involved in the transaction, who was in a position to give a first-hand account of the matters in controversy and throw light on them, and who could have refuted on oath the allegations of the other side …” [65] To surmise on this point, I hold that such allegations are therefore unproven and completely baseless. Conclusion and Decision [66] In the circumstances, I hold that the Plaintiff’s claim has not been proven and as such must be dismissed with costs. [67] Costs of RM85,000 awarded to the Defendant after hearing both counsels submit on the issue of costs. Dated: 29th day of January 2024 31 sgd. NADZARIN WOK NORDIN HIGH COURT JUDGE CONSTRUCTION COURT 1 COUNSEL FOR THE PLAINTIFF: Devan Narayanan Raman [Messrs Devan & Associates (Kuala Lumpur)] COUNSEL FOR THE DEFENDANT: Andrew Heng Yeng Hoe, Roger Leong Chun Lim and Atiqah Yasmin Sedek (Messrs Zain Megat & Murad (Kuala Lumpur)]