Security company loses appeal against warden selection award

A Court of Appeal threw out a request by Aurelia Enforcement Ltd, demanding the annulment of a Public Contracts Revision Board's (PCRB) decision to award it a tender for the supply of local council wardens in the south-east region of Malta.

The contract was awarded on 14 August, 2013 to Sterling Security. Aurelia Enforcement Ltd (AEL), also a bidder for the same tender, objected to the decision stating the minimum five-year experience requirement should have been treated as an awarding criteria and not as a selection criteria.

The security company argued that the South Eastern Region Committee had decided to add an administrative compliance column to the evaluation grid, which had a negative effect on the selection process as at that stage AEL did not have the five years' experience requested in the tender.

However the PCRB held that the five-year experience clause was mandatory and if not satisfied, the company would be administratively not compliant. Aware of not satisfying this clause, AEL still submitted their offer for adjudication. The PCRB disqualified AEL and recommended that the deposit paid to submit the tender should not be reimbursed.

On 13 September, AEL appealed the decision in court, arguing that the call for tenders was issued by a non-juridical entity which could not sign tender agreements, that the South East Region Committee was appointed after the call was issued, and that the PCRB failed to perform its legally binding duties.

On its part, the court declared that AEL could not introduce new issues during an appeal. "The issues raised by AEL cannot be accepted, as it is acceptable that tenders are issued with the intent of appointing or enacting an entity to sign the contracts. A call for tenders can be requested and the entity is subsequently created," the court said.

The Regional Committees are legally empowered to issue bye-laws, provide for enforcement services and sign contracts related to the same services. The court also declared the mandatory requirement of five years' experience was included in the application for tender, which mean that AEL was aware it did not satisfy the tender's requirements.

Chief Justice Silvio Camilleri, Mr Justice Tonio Mallia and Mr Justice Joseph Azzopardi, rejected the appeal of Aurelia Enforcement Ltd and confirmed the decision of the Public Contracts Revision Board regarding the service agreement signed by the South East Region Committee.

Lawyer Joe Mifsud appeared for the South East Region Committee while Dr Adrian Delia represented the South East Region Committee.