Government waste management company Wasteserv and the Department of Contracts refuted claims of “irregularity” in the award of a €600 million tender for a waste-to-energy incinerator in Magħtab, calling the second-place bidders’ appeal a “fishing expedition.”
In a sitting in front of the Public Contracts Review Board on Wednesday, final submissions were made ahead of the board’s decision. The government authorities claimed the controversial publication of bidders’ financial data ahead of the conclusion of the tendering process was “meant to happen,” insisting the “information was not confidential and competition was not distorted.”
The contract for the project, characterised as “the largest ever infrastructural project in Malta” by Wasteserv CEO Richard Bilocca, was awarded to a consortium comprising local construction company Bonnici Bros and French waste management company Paprec. It involved a tendering process which included negotiations with the bidders, a first for the country.
Concerns were first raised when, in the middle of the tendering process, the Department of Contracts published bidders’ financial information before negotiations had ended.
The move, labelled “irregular” by second-place bidders Hitachi-Zosen Terna, was initially understood to be a mistake but was later justified ‘for transparency’, fuelling claims of backdoor deals for a preferred bidder to win.
Wednesday’s hearing was the fifth for the case, making it the longest in PCRB history. In comments to The Shift, PCRB Chairman Kenneth Swain said, “The board will now deliberate the substantial case in front of it and issue a decision within our allotted six-week time frame.”
In their final submissions to the board, Hitachi-Zosen Terna’s legal council, Adrian Delia and Matthew Paris, raised several grievances with the tendering process. They argued that the publication of “sensitive” data breached national and EU procurement rules and was made without Hitachi’s express consent.
Hitachi also argued that the prices quoted by the preferred bidder, 30% lower than other competitors in some cases, were unrealistic and should have triggered an investigation by the tender evaluation team.
They maintained that publishing the data “distorted competition,” Delia claimed it reduced the tendering process to “an auction where competitors simply try to outbid each other” instead of putting their best technical offers forward.
Wasteserv and Department of Contracts legal representatives Antoine Cremona and Clement Mifsud Bonnici argued that the data was published by design to “promote transparency”, calling the appeal a “fishing expedition designed to find faults.”
They said the “publication was meant to happen, the information was not confidential, and competition was not distorted.”
They said the tender documentation informed bidders of the DoC’s rights to publish the data and that since “the information was not confidential, a waiver was not needed.”
They also claimed that the Hitachi consortium, by participating in the entire tendering process, “acquiesced” to the procedure.
The government’s legal representatives claimed that it was only after the publication of “a news article which published the prices,” ostensibly The Shift’s report revealing the controversy last June, that Hitachi raised an appeal against the contract department’s decision.
The board will now deliberate the case for a maximum of six weeks ahead of a final decision. It is not excluded that the PCRB decision may be appealed, placing the case in front of the Court of Appeal for deliberation.