Court of Appeal orders full re-evaluation of border control procurement

The Court of Appeal delivered two judgments on Thursday, addressing appeals related to the procurement of a Border Control System for the Malta Police Force.

The bench, composed of Chief Justice Mark Chetcuti and Judges Christian Falzon Scerri and Josette Demicoli, examined grievances originally raised before the Public Contracts Review Board (PCRB).

Both appeals involved separate parties but stemmed from the same public procurement procedure valued at €11 million, excluding VAT. Bidders included SITA BV (€6,083,403), NetU Consultants Limited (NCL, €6,310,500) and PTL Limited (€10,896,945.94), with NCL initially recommended as the winning bidder.

In the SITA case, NCL challenged the PCRB’s decision to revoke the award initially granted to them. The PCRB had upheld SITA’s grievance, citing irregularities in the evaluation process, including inadequate assessment of NCL’s abnormally low tender under Regulation 243 of the Public Procurement Regulations.

The Court of Appeal confirmed these findings, noting that NCL’s explanations for its low bid were reviewed in haste and without proper documentation, compounded by external pressure from the permanent secretary.

The appeal was rejected, and the court ordered a re-evaluation of all offers by a newly composed, independent committee. Costs were split, with 80% borne by the Malta Police Force and 20% by SITA.

In PTL’s case, the company appealed the PCRB’s rejection of most of its grievances. The court highlighted contradictions between the PCRB decisions in the two cases and, following its reasoning in the SITA case, annulled the PCRB’s ruling in its entirety.

The court ordered a full refund of PTL’s €55,000 deposit and confirmed that all evaluations must be restarted by a fresh committee. Costs were borne entirely by the Malta Police Force.

Both judgments emphasised that the evaluation committees failed to properly document and assess abnormally low tenders and that previous technical compliance decisions would not influence the new evaluation. All prior determinations regarding technical merits and disqualifications were effectively voided.