Contracts board must consider objection over Marsamxett ferry tender, court rules

The Court of Appeal has overturned a decision by the Public Contracts Review Board, which had previously declared an objection to the government’s extension, without a tender, of a public concession for ferry services to be time barred.

The case revolved around the extension of a contract given to Marsamxetto Steamferry Service - a joint venture between the Zammit Tabona and Bianchi Groups - for the provision of scheduled maritime ferry services for the Grand Harbour and the port of Marsamxett.

This contract was originally made out for eight years, lapsing in 2020. However during that final year the concession was extended for another three years. The complainant objected to this and sent a letter to the Board requesting that the extension to the concession be declared ineffective at law.

The Board had dismissed the objection as null due to it being filed too late. It upheld a preliminary plea by the contracting authority in which it was argued that under the relevant subsidiary legislation, a request for revision had to be made within 6 months of the date in which the contract was signed – in this case 27 March 2020.

Supreme Travel filed an appeal from the Board’s decision, arguing that it only found out about the extension on December 3, 2020 when the minister responsible had answered a Parliamentary question about the contract, at which point he had said the original contract had been extended by three years. The company argued that the 6 month cutoff period had to be taken as starting, not from the time of the signing of the contract, but of when it was made public.

In a decision handed down today by Chief Justice Mark Chetcuti, together with judges Joseph R. Micallef and Tonio Mallia, the Court of Appeal said that the appellant was right. “It is true that the law imposes a 6 month time limit for contestations which begins from the date of the contract, but, if the interested economic operators are not aware of this date which would not have been made public, it is difficult to say that the time limit is counted from the date of a contract which is kept hidden!”

One of the principles of administrative law was that when the law provided a remedy, the remedy had to be real, effective and usable, said the court.

In this case, when the original concession reached its end, the appellant company had noticed that Marsamxetto Steamferry Services Ltd had continued to offer the service and so had made contact with the Transport Authority to obtain more information. However the requests for information were never answered. Towards the end of 2020, it heard that the defendants had been granted an extension, but it was only on 3 December 2020, after a Parliamentary question, that this had been publicly confirmed by the Minister responsible.

The court disagreed with the Transport Authority’s argument that the court’s hands were tied, as the law was clear on when the 6 months began. Instead, it said, the court must decide according to justice and that the time limit should be taken as starting from when interested parties could have been aware of it.

In this case, there was no publication of a notice in the official journal of the European Union, said the court. As a result, the time limit should be taken as counting from December 3, 2020 – the date in which the granting of the contract was made public.

The plaintiff’s objection was therefore taken as being valid.

For these reasons, the court revoked the decision of the Board of Revision of public contracts and sent the case back before the Board to investigate the merits of the appeal made by Supreme Travel.