Court blocks €58 million Armed Forces helicopter tender

A judge last night put on hold a €58 million Armed Forces of Malta tender for the procurement of helicopters, after upholding an application for a prohibitory injunction filed by defence aircraft manufacturer Eurocopter.

In a ruling handed by Mr. Justice Joseph Zammit McKeon, presiding over the First Hall of the Civil Courts, Eurocopter had their request for a prohibitory injunction to be issued against the AFM upheld, and has instituted a case for it to be reconsidered in a tender process for the provision of military helicopters for border control.

Eurocopter have filed for redress after finding themselves disqualified by an evaluation board, for allegedly not being "administratively non-compliant" with the tender requirements, putting them directly out of the race, and practically awarding the contract to their sole competitor Augusta Westland SpA.

Moreover, Eurocopter also questioned the AFM's unanswered questions related to the requirement of the helicopters having the ability to land on the deck of its patrol craft P-61.

The AFM tender issued in September last year will see the European Union finance up to 75% of the cost, as part of its co-financing of EU border control.

After months of technical meetings with the AFM, Eurocopter and Augusta Westland SpA submitted their offers last September.

But the evaluation board informed Eurocopter last December that it was being disqualified for on administrative grounds at the initial stage of the process.

Eurocopter's lawyers pointed out that during the tender opening stage, which was held in public, there was nothing irregular noted.

While quoting case law from the Public Contracts Review Board, the European Court of Justice and the Maltese Courts, it has long been determined that "whenever a tender document contained ambiguous provisions, then that fault should not be attributed to the bidder."

The point was raised after Eurocopter were informed that their disqualification was based on the fact that its financial package was submitted in the form of a CD.

Eurocopter's legal representatives stressed that while the tender document referred to 'the soft copy' which could well have meant one CD containing all three packages, namely including the financial package, yet Eurocopter explained that it was "extra careful" and included two CDs; one which contained packages 1 and 2 which was sealed in an envelope, and another sealed in a separate envelope, all of which were clearly marked with what they contained.

Eurocopter stressed that in doing so, it was ensuring that if the AFM wanted to look at the technical submission of the soft copy, it could do so without having access to the financial offer which was purposely stored in a separate CD, and sealed in a separate envelope.

The AFM have meanwhile been given ten working days to respond to the court's upholding of the prohibitory injunction.