Tribunal should not hide its expert

The Court of Appeal ruled on 11 August, 2014 that a tribunal may make use of an expert, so as long as it is in open court. 

The Court of Appeal, presided by Chief Justice Silvio Camilleri and including Mr Justice Giannino Caruana Demajo and Mr Justice Noel Cuschieri delivered its judgment in the case B. Grima and Sons Limited -v- Transport Malta and Road Maintenance Services Limited.

The case started with a tender issued by Transport Malta (TM) “for the provision of vehicle and pedestrian restraint systems and various metal works”.

The instructions of the tender asked for the tenderer’s technical capacity and that evidence would have to be shown that the tenderer worked on similar projects to a collective value of €50,000 per annum.

There were three bidders and Grima and Sons’ was the cheapest offer. TM awarded the contract to the second cheapest bidder, who was the defendant, Road Maintenance Services Limited (RMS).

TM then sent an email to Grima and Sons saying that their bid “has not been accepted by Transport Malta as it was not the cheapest bid and it ranked second”.

Grima and Sons immediately drew their attention that in fact they were the cheapest, however, within an hour they received a second email that their bid “was not technically compliant in relation to Article 16.1(d) of the Instructions to Tenderers and as required by article 6.1.12. The minimum value of projects of a similar nature completed was less than the required €50,000 per annum”.

Grima & Sons filed an appeal before the Public Contracts Review Board where it complained that TM could not change its decision in that it was choosing the cheapest offer and also that it was technically compliant and therefore, should not have been disqualified.

The board cannot take a decision on facts that the parties are not aware of. In the particular case the board took a decision on a report nobody knew of

The board appointed a technical expert to “...examine whether the works submitted by the appellant in his bid was in conformity with what the tender asked for”. On 29 April, 2014 the Review Board decided against Grima & Sons, since the expert’s report concluded that they failed to meet the criteria of €50,000 and also “failed to provide in a clear manner evidence that works of a similar nature have been carried out”. 

Following this decision the company filed a further appeal before the Court of Appeal and held that the board failed to consider the nullity of the second email it had received. TM had explained that the first email was an administrative error.

The court commented that although the tribunal did not expressly state whether this ground of appeal was being upheld or otherwise, it was obvious just the same that the board had turned down all the appeal. This was not a serious shortcoming for the court to annul the decision and it continued by agreeing with TM that the first email to Grima & Sons was an obvious clerical error and was corrected within the hour.

The court then moved on to the second ground of appeal in that the board had advice from an anonymous technical expert. TM argued that the board did not rely solely on this expert but on the submissions presented by the party. TM also held that the expert was its employee but was a member of the Evaluation Committee. 

The Court of Appeal held that the board is authorised by law to appoint experts to assist it in its investigations. The investigation is only part of the procedure and must be held in open in order to give equal opportunities to both parties.

The board cannot take a decision on facts that the parties are not aware of. The parties should have the opportunity to control the facts and comment on them. In the particular case the board took a decision on a report nobody knew of. Furthermore, the board acted as though the expert formed part of the panel and the consideration held in chambers. In fact the board did not disclose how it arrived at its conclusions. The court also took exception to the fact that this expert was in fact an employee of TM and could not be considered an independent and impartial expert. This was a major flaw in the process. The court upheld this ground of appeal.

Grima & Sons asked the court to annul the decision and award it the contract. The court held that although it was revoking the board’s decision it could not award the contract itself, because although procedurally the decision was defective, it may not have been from the substantive point of view. Therefore, the case was referred back the Review Board

Malcolm Mifsud

PartnerMifsud & Mifsud Advocates

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