Technical specifications downloaded from internet

The Public Contracts Appeals Board (PCAB) has ordered the Works Division within the Ministry for Resources and Infrastructure to re-issue a call for tenders for the paving of two roads in Valletta.

The decision was taken following an appeal lodged by AF Ellis (Home Decor) Ltd after the General Contracts Committee (GCC) cancelled the original call for tenders for the paving of Merchants Street and St John's Street.

The PCAB heard that the GCC had concluded that none of the five bidders that had competed for the tender were compliant with the technical specifications.

It resulted that the Works Division, when issuing the call for tenders, had downloaded from the internet specifications for the porfino stone to be used in the project. The specifications listed in the commercial text downloaded were of a very high level and, consequently, none of the five bidders managed to attain the required standard.

The Adjudicating Board had decided to lower the standard of the specifications in the negotiating procedures.

When asked to explain what the negotiating procedure was, the Director General of Contracts told the PCAB that the contracting authorities were empowered at law to request an offer from bidders of their choice.

But AF Ellis (Home Decor) Ltd submitted that the GCC could not carry out the negotiated procedure and include those contractors who had not submitted a tender.

In its decision, the PCAB found that the methodology used by the contracting authority in this case was questionable as it had relied on specific documentation downloaded from an internet site to draft the contents of the tender document. The said specifications had been so high that prospective bidders were impeded from being in a position to fulfil the tender requirements.

The PCAB said that public contracts were a serious issue for they utilised considerable amounts of public funds. Thus, the issues of value for money, transparency of procedures and a high degree of attention to detail during the drafting of the tender document were as important as the issue of urgency.

The board felt that a proper and more professional approach by the Works Division was imperative as delays in the final adjudication of tenders could turn out to be costly and a waste of human resources as well as an inconvenience to the public.

In its decision, the board added that it could not consider favourably the option of downscaling the tender specifications merely because the original specifications were subsequently considered to have been so high that no participant could possibly ever meet them. Such an option could send out the wrong signals insofar as the transparency and professionalism of the tender procedure was concerned. The negotiated procedure was also deemed to be a potentially flawed solution in this case.

In conclusion, the board ruled that the Works Division should re-issue a fresh call for offers to ensure complete transparency and fairness in the procedure. A thorough analysis had to be conducted to ensure that the prospective bidders would be able to meet the tender specifications. Such specifications would have to still reflect a high degree of value for money to the taxpayer and to the public at large.

After urging the Works Division to expedite procedures as much as possible, the PCAB recommended that the deposit lodged by AF Ellis with its appeal be refunded to the company.