The adjudication of a contract for the construction of a road at Triq id-Dwejra in Gozo, has ground to a halt after an unsuccessful bidder filed an objection against the exclusion of its bid.

The excluded bid was by Polidano Group and Gatt Tarmac Limited.

On 7 July, the General Contracts Committee recommended that only the financial proposals of MAC Joint Venture were to be opened on 19 July unless there were any objections.

The next day, Polidano and Gatt received a fax from the Director General (Contracts) stating that their bid had been excluded from the financial stage of the tender procedure because it “was not in compliance with the Tender Dossier since the identity of the tenderer submitting the tender is obscure because while the tender guarantee identified M/S Gatt Development Limited for Gatt Tarmac as the tenderer, the Tender Form did not identify the name of the tenderer.”

On 14 July, Polidano and Gatt’s legal representatives, Stefano L. Frendo, Antoine Cremona and Noel Camilleri, sent a letter to the Director General (Contracts) registering their objection to the decision.

In their letter, they gave six reasons why this decision was, in their view, “legally and factually incorrect”:

1. It is incorrect to state that the Tender Form did not identify the name of the Tenderer. As a matter of fact the name of the Tenderer was unequivocally indicated in the documentation provided in the second package;

2. In addition, the second package contains copious information (including but not limited to) organisation charts, financial statements, financial identification forms, documentation on key personnel and professional experience, litigation history etc., on the Tenderer and the sub-contractor clearly identifying them in terms of the invitation for tenders published by the contracting authority;

3. So much so, the above-mentioned fax was addressed to clearly and unequivocally identified interested parties (Tenderer and sub-contractor in proper order) and not to uninterested third parties such as, for example, Gatt Developments Limited which, indeed, featured in the first package. In the circumstances, it is incredible how the adjudication process could find reason to get all so mixed up;

4. It is common practice in the construction industry to have such partnering arrangements between tenderers and sub-contractors. And the right granted by the Public Contracts Regulations to the contracting authority to ask for clarifications should serve properly the purpose of clarifying these matters.

It is the practice of the adjudicating authority to seek such clarifications and, if need be, acquire written undertakings in this respect rather than resort to the superficial and excessively formalistic “solution” of exclusion.

In addition, the exercise of such discretion has to be projected against the factual and legal circumstances of this particular case, especially when one considers the estimated value of the procurement process, the very limited number of potential bidders and the fact that this is the first major infrastructural project financed by the European Union Regional Development Funds in Gozo.

The adjudicating authority has the right and the duty to seek any additional clarification as it may require. The abdication of duty in the exercise of such discretion is an abuse which may lead to the award of the contract to less economically advantageous bidders against public interest;

5. The offer by Polidano & Gatt, for which a significant amount of resources was invested, should be evaluated on its merits and not, therefore, lightly excluded by having recourse to overly formalistic reasons and misuse of administrative discretion;

6. Finally, Polidano & Gatt were unfairly treated in these proceedings because they were denied access to the documentation of this whole process contrary to their legal right to obtain the necessary documentation, even to make informed submissions in this appeal for which a filing fee of 0.5 per cent (Lm10,000) is being deposited.

“For this and other reasons that may be brought during the oral hearings of this objection/appeal, Polidano & Gatt are hereby requesting the reversal of the decision of 8 July 2005 excluding same from the tender process for the reason therein mentioned with costs and commercial interest due,” their letter ended.

The Public Contracts Appeals Board is expected to hear the case soon.