Reference is made to the article entitled ‘Evarist Bartolo ordered payment for ‘irregular’ school works’ (The Sunday Times of Malta, January 15).
Avantgarde Projects Ltd was awarded the works after the issue of a public tender at the end of 2011. Works were to start in April 2012 and finish at the end of August 2012.
For reasons beyond the control of Avantgarde Projects Ltd, a large portion of the area under the contract was not handed over in time for completion according to the contract.
A day before the Contractual Completion Date (CCD), Avantgarde Projects Ltd commissioned an independent audit of the area handed over to it by then to establish the amount of work executed; from this audit, it resulted that the amount of work executed by Avantgarde Projects Ltd up till the CCD covered 100 per cent of the areas which had been handed over to Avantgarde Projects Ltd.
FTS not only did not react or respond to the audit, it stopped issuing measurement and payment certificates for the works executed till then; Avantgarde Projects Ltd brought the matter to the attention of the director of contracts and officially informed him that unless the areas are handed over for completion, there will be additional costs involved.
Avantgarde Projects Ltd is informed that in November 2012, FTS officially asked the director of contracts to terminate the contract for reasons, seemingly, pertaining to lack of performance; from information available to Avantgarde Projects Ltd at the time, FTS did not have the necessary Mepa permits for the demolition of the Nissen huts and at least up until December of 2012 some areas still had to be constructed.
Obviously, these areas were not and could not have been handed over to Avantgarde Projects Ltd during the contract period, i.e. between March 2012 and August 2012.
Avantgarde Projects Ltd was asked to continue with the works in December 2012 and all remaining works were completed by January 2013.
This is in sharp contrast with what was reported in this paper that the contractor was not in line with his tender’s obligations. To the contrary, the contractor executed works way past the contractual completion date solely and exclusively due to lack of planning by FTS; this is also in sharp contrast to the paper’s statement regarding the non-compliance in the programme of works.
With regard to the claims presented, these included additional costs related mainly to the delay for which FTS is solely responsible. These claims were brought to the attention of the FTS as well as the director of contracts in September 2012 and October 2012.
From the final claim presented by Avantgarde Projects Ltd, a deduction of around €120,000 was decided by FTS and Avantgarde Projects Ltd accepted to settle for €418,000. The settlement was received three years after completion of all works according to the contract.
FTS’s calculation of €368,000 as reported in your paper does not take into consideration the added costs imposed on the contractor and, above all, FTS never even offered to pay any amount, let alone €368,000 that it is now being reported that it accepted as being due. This same figure compounded at eight per cent legal interest per annum would amount to nearly €30,000 for each year, so according to FTS’s own admission, the amount the contractor should have been paid should have been just below €460,000. This is not to mention a late payment charge of one per cent monthly, as stipulated in the contract, which would work out at €3,680 monthly, or € 44,160 annually, and which over a period of three years would have amounted to €132,480.
Rather than attacking the minister for taking the necessary steps to resolve the matter, FTS should come out and state why it withheld this amount from the contractor rather than insinuations being made that the minister or the permanent secretary or any other person pressured FTS to pay what was in any case due to the contractor.
Before instituting the relative judicial proceedings, I decided to report the matter to the new Minister of Education, who met me on March 18, 2013; the minister did not commit himself in any way whatsoever but assured me that the case would be investigated and decided by the new board of directors which was being formed; only one meeting was held with the new board and that took place in September 2013.
Avantgarde Projects Ltd was kept in the dark throughout the period between 2013 and November 2015, when it was asked by FTS to accept a ‘take it or leave it’ settlement of €418,000. Avantgarde Projects Ltd decided to renounce to all interests due as per contract and accept the offer.
This right of reply is being made without prejudice to Avantgarde Project Ltd’s legal rights.
Editor’s note: See also story in news section.