An Israeli company, a failed bidder for the Delimara power station extension, is not excluding suing the government if the European Commission’s investigation into the tender concludes that EU directives were broken.

“Bateman is following the Commission’s investigation and keeping all its options open. Its decisions will be based on how the case develops,” general manager Shaul Morgenstern said when asked whether the company would take legal action if the accusations made by the Commission were substantiated.

In June, the Commission sent a three-page letter to the government accusing it of having “discriminated in favour” of bidders with diesel engine proposals when it changed the law raising emissions thresholds towards the end of the tendering process.

This is the first time Bateman is speaking out since this letter was made public. According to the Commission, the change in the law put Bateman, which offered a cleaner gas-powered plant, at a disadvantage.

The letter was the first step in a protracted process that could lead to legal action against the government.

The government has so far refused to comment on the possible outcome of the Commission’s investigation, insisting it replied to all queries raised and supplied all the necessary information to ­Brussels.

It was The Sunday Times that first revealed the existence of the Commission’s letter. Subsequently, the Labour Party published the letter after the government refused to reveal its contents.

Labour leader Joseph Muscat challenged the government to publish the replies, a request that has been turned down.

The multimillion euro tender was awarded to Danish company BWSC, which proposed eight diesel engines for the Delimara power station extension.

European Commission vice-president Michel Barnier, writing on June 3, expressed serious concerns about the tendering process, particularly changes to a legal notice that regulated emission levels in January 2008. The amendments increased the limit values for diesel powered plants, which, in turn, brought about a change in the technical specifications of the tendering ­document.

Had the emission levels not been changed, the likelihood was that the diesel engines proposed by BWSC and German diesel-engine company Man-Diesel would not have qualified, leaving only Bateman with its gas-powered turbines in the ­running.

The Commission said the change in technical specifications could constitute a breach of equality and non-discrimination rules and could have violated various other directives. Brussels also pointed out that the changes in the legal notice had nothing to do with the correct transposition of EU legislation, as the government had claimed.

The Commission noted that failed bidders were not informed in time by the Contracts Department that the tender was awarded, thus not giving them sufficient time to appeal as was their right at law.

As a result, in this case too, the Commission warned that EU directives could have been ­broken.

Meanwhile, Labour MEP Louis Grech tabled a number of parliamentary questions asking the Commission for an update on the matter.

The extension to the Delimara power station, which will be completed by the end of 2011, is intended to replace the Marsa plant, which is being decommissioned.

ksansone@timesofmalta.com

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