The Public Contracts Review Board has been ordered by the Court of Appeal to reassess the case of a failed bidder in a tender for a hearing device for children and adults after the court observed that there had been "a lack of clarity" in the contracting authority's call.

OK Ltd had filed an objection before the Public Contracts Review Board arguing that the device offered by the successful bidder, namely German company Med-El Elektromedizinische Geraete GmbH, did not cater for patients under the age of five years. The original call had been for 'children and adults' it was pointed out.

Moreover, the chosen devices of the successful bidder failed to conform with the mandatory technical requirements outlined in the tender.

These objections were however rejected by the Review Board which declared it had evaluated the bids and based its interpretation of the term “children” in its medico-legal sense as referring to individuals between the age of five and 18. This restricted interpretation was extracted from the UN Convention on the Rights of the Child, it was said.

Moreover, the Review Board declared that its role was to “verify that the correct and proper procedures were adopted in awarding the tender.” Having concluded that the adjudication had been done in a fair and just manner the Review Board did not perceive the need of delving into the merits of the appellant's claim.

However, this approach was deplored by the court of appeal, presided over by Chief Justice Silvio Camilleri, together with Mr Justices Tonio Mallia and Joseph Azzopardi, who observed that in such public tendering processes clarity was essential.

In the first place, the contracting authority, namely the Health Ministry, ought to have laid down in clear terms that the hearing devices were intended for "children (not infants) and adults."

Secondly, the Review Board had abandoned its duties when it failed to analyse whether the product offered by the successful bidder actually conformed to the technical requirements imposed under the original tender.

For these reasons, the court revoked the decision of the board and ordered that the same board was to reassess the appeal of the failed bidder, namely OK Ltd.

Lawyer Michael Tanti-Dougall was counsel to OK Ltd.