A complaint by a harbour ferry operator has been sent back before the Public Contracts Review Board after an appeals court ruled that the company had not been notified about the extension to a concession given to a competitor.
The appeal was filed by Supreme Travel Ltd, which is contesting the validity of a three-year extension given to Marsamxetto Steamferry Services Ltd to operate the Grand Harbour scheduled ferry service.
Marsamxetto Steamferry Services – a joint venture between the Zammit Tabonas and the Bianchi Group – had been awarded an 8-year contract that was set to expire in 2020. But the company had complained that it had not managed to recoup its investment as a result of the Covid-19 pandemic and Transport Malta’s failure to build the required infrastructure, as per contract terms.
Its concession was subsequently renewed for three years, but the process was not carried out through a public call. Supreme Travel, which had also expressed interest to operate the service, had taken the case before the Public Contracts Review Board and asked it to nullify Marsamxetto’s extension.
On 1 June, the PCRB rejected Supreme’s complaint, saying that the company had failed to file its complaint within six months from the awarding of the contract.
Supreme then took the matter before the courts, saying that it could not have adhered to the six-month time window because it had never been informed about the extension given to its competitor.
The appeal was filed against Transport Malta, Marsamxetto Steamferry Services Limited, Transport Minister Ian Borg and the Director General of Contracts.
The company said it had only found out about the extension when this was revealed through a parliamentary question in December 2020.
The court, presided by Chief Justice Mark Chetcuti and judges Joseph R. Micallef and Tonio Mallia, said the company’s request was justified in that economic operators cannot be expected to abide by the six-month time window if they are not notified about the facts.
Furthermore, when Supreme noted that Marsamxetto had continued operating the ferry service beyond the original expiry date, it had sought answers from Transport Malta but was not given a reply, the court noted.
TM had argued that the law was clear on the 6-month deadline, but the court noted that no notice of the extension was published in the EU gazette. For this reason, the six-month period came became effective on 3 December 2020 - on the day when the extension was announced in Parliament by the Transport Minister. This means that the objection raised by Supreme the following February did indeed fall within the timeframe.