Virtù Ferries, which is challenging the award of a fast ferry contract by Gozo Channel to an ‘inexperienced’ company, has asked the courts to seek the European Court of Justice’s advice before passing judgement.

Invoking a provision of the EU Treaties, a move rarely used in Malta, Virtù Ferries filed an application asking the Court of Appeal to suspend its procedures and make a preliminary reference to the EU’s Court since the issues at stake involved the interpretation of EU directives.

In its application to the Appeal Court, presided over by Chief Justice Joseph Azzopardi, Virtù Ferries said that among the matters to be addressed was whether Gozo Channel, a State entity, was a contracting authority and whether a ‘preliminary market consultation’ process, invoked by the State entity as the reason why this was not a normal tender, could be employed in an acquisition of a service.

Recommendations were ignored

The contract, awarded by Gozo Channel last year, ended up in court after Virtù Ferries objected that, despite having all the necessary know how and making the best offer, an inexperienced company – Islands Ferry Network Ltd – was instead selected as Gozo Channel’s fast ferry partner.

The Sunday Times of Malta reported that, in July 2017, Gozo Channel had ignored recommendations by a board of evaluators, which it had set up, to partner with Virtù Ferries that had made the best bid. A fresh call for those interested in providing a fast ferry service was then issued on instructions from the Office of the Prime Minster, it said.

A new board of evaluators was set up, headed by Joseph Cuschieri, at the time chairman of the Malta Gaming Authority and now CEO of the Malta Financial Services Authority, which recommended that Gozo Channel should partner with Islands Ferry Network Ltd, a joint venture between Captain Morgan Cruises and Gozo food products manufacturer Magro Brothers.

Virtù Ferries objected vehemently and accused the State company of choosing a company formed just a week before the selection process was concluded and with no experience of operating a fast ferry service, as required by the conditions announced in the call.

An appeal to the Public Contracts Review Board was rejected on grounds that Gozo Channel’s exercise was a “preliminary market consultation” and not an official tender.

However, it pointed out that the exercise conducted by Gozo Channel “was inappropriately designated”. Virtù Ferries challenged the decision before the Court of Appeal.

The tender process for the provision of the services, both conventional and fast-ferry, remains suspended pending a final decision by the Appeal Court.