The government has been ordered to reveal the contents of a controversial €274 million contract awarded to James Caterers and a subsidiary of the Seabank db Group, following a complaint filed under the Freedom of Information Act by the Times of Malta.
Reversing various decisions made by the Ministry for the Family, which turned down requests for the contract’s publication, including by MPs in Parliament, the Information and Data Protection Commissioner upheld this newspaper’s complaint, chiding the government for its lack of transparency.
The Times of Malta protested against the stance of Family Minister Michael Falzon and Parliamentary Secretary Anthony Agius Decelis to keep the contract under wraps. This newspaper argued that since the contract concerned public health and involved the spending of hundreds of millions of public funds, full transparency was in the public interest.
In his decision, Commissioner Saviour Cachia ruled that while it was true that some aspects of the contract for a 500-bed extension at St Vincent De Paul may be commercially sensitive, “the decision taken by the government to refuse, in toto, the request by the Times of Malta is not entirely justified”.
He said that “without considering providing partial access by redacting or otherwise masking the exempt material (in the contract), is not considered to be in line with the transparency spirit” as contemplated by the Freedom of Information law.
The commissioner ordered the government to let this newspaper inspect all the contracts and agreements it had entered into on SVDP after redacting certain information including personal data and commercial rates.
Legal sources familiar with the FOI Act hailed the decision of the Information and Data Protection Commissioner, describing it as “a first” when it comes to revealing public contracts of a certain magnitude.
Amendment outside the scope of the original tender
The controversial mega-contract goes back to November 2015 when the government published a tender for a public-private partnership involving the provision of daily meals for residents and staff at St Vincent De Paul over a 10-year period and the construction of a new kitchen.
In an ‘abnormal’ request inserted in the same tender, the government included an “additional investment” clause, through which the awardee was expected to give a “gift” to the government at no additional cost.
During the evaluation, a company owned by the Vassallo Group submitted the cheapest offer for the provision of meals and the building of a kitchen.
However, the government chose to award the tender to a consortium formed by James Caterers and a Seabank db Group subsidiary, as they had made an additional investment offer to build a 250-bed extension at the old people’s home on public land.
Following the publication in The Government Gazette of a record €274 million direct order related to this tender, the Times of Malta found that from the original €60 million the value of the tender more than quadrupled.
Justifying this phenomenal increase, the government explained that, following the original award of the tender, the James Caterers/db Group consortium entered into fresh negotiations with the government and submitted an “improved offer” proposing to build a 500-bed extension at SVDP instead of its original 250-bed offer.
In exchange, the government agreed to grant the same consortium through a direct order a contract for the management of the same extension and paying them €274 million over 10 years.
Experts told this newspaper that this latest amendment to the tender was “outside the scope of the original tender” and potentially infringed EU public procurement rules.
The Democratic Party had called upon the National Audit Office to investigate the contract and the government agreed. Vassallo Group did not appeal the final decision following the award of the tender.
ivan.camilleri@timesofmalta.com