The Court of Appeal has annulled a call for tenders by Cospicua local council and expressed concern about allegations made by one of the bidders about conflict of interest by lawyer Luciano Busuttil, who advised both the local council and the bidder selected for the contract.
The court in ordered the adjudication process to start afresh also ordered a copy of its judgment to be delivered to the Attorney General, the Director of Contracts and the Commission for the Administration of justice for the necessary investigations to be carried out.
The case was filed by WM Environmental Ltd against the Cospicua Local Council, Saviour Mifsud and the Director of Contracts.
Last January the council issued a call for tenders for the collection of domestic waste. The tender conditions specified that bidders were to submit, with their offer, a certificate issued by the Employment and Training Corporation (ETC) indicating the number and details of employees and a signed declaration confirming the number and details of the employees to be assigned to this contract.
WM told the court that the cheapest offer was submitted by John Borg, but it was disqualified on the basis that the tender had not been accompanied by a proper bid bond.
The second cheapest offer was that made by WM but this was disqualified by the Tender Selection Committee set up by the council after it claimed that the bid documents had not included the ETC certificate giving the details of the company's employees. The committee said that it had reached its decision to disqualify WM on the advice of its lawyer (Labour MP) Luciano Busuttil.
The tender was then awarded to the third cheapest bidder, Saviour Mifsud.
WM claimed that it had submitted both the ETC certificate and the signed declaration with its tender. No mention of the lack of these documents had been made by the Tender Selection Committee when the tenders were received and opened.
WM said it had told the Board of Revision, which first heard this case, that it had discovered that Dr Busuttil was lawyer to the council and also lawyer to Saviour Mifsud and that there was therefore a blatant conflict of interest in this case.
But the Board dismissed WM's appeal on the basis that the council reaffirmed that the company had failed to annex the mandatory documentation to its tender.
WM then appealed to the Court of Appeal and insisted that it had in fact filed the necessary documentation and that had it not done so, this would have been noted as soon as it had submitted its tender.
Both Mr Mifsud and the council contested the appeal, and the council submitted that it had not noticed the missing documentation when the tender was submitted but only when it was opened. The council claimed that WM's allegation, namely that someone within the council had removed its documentation, was false and defamatory.
But the Court of Appeal said that had the council noted the missing documentation when the tender was opened, it would have made a declaration in that sense. The fact that the council's schedule of tenders made no mention of missing documents meant that the documents were not really missing but had really been filed by WM with its tender.
The court added that it would not be carrying out its duties if it failed to express its worry about the allegation made by WM about the lawyer's conflict of interest. Dr Busuttil had advised the council to reject WM's offer, as a result of which the tender was awarded to Mr Mifsud when, at the time, he was acting as lawyer to Mr Mifsud.
If this allegation was true, then there was a serious conflict on the part of the lawyer.
The court upheld WM's appeal and annulled the award of the tender to Mr Mifsud.
The court ordered that the adjudication process start afresh. The court also ordered that a copy of this judgment be delivered to the Attorney General, the Director of Contracts and the Commission for the Administration of Justice for the necessary investigations to be carried out.