Maltese bidders' injunction stops government from signing transport contract

The awarding of concession rights to operate Malta's public transport has been delayed after the civil court provisionally issued a warrant of injunction prohibiting the government from signing a contract with Spanish operators Autobuses de Leon.

The injunction, filed by Lawyers Nicholas Valenzia and Stephen Muscat on behalf of Island Buses Malta Limited against the Government, the Minister for Transport and Infrastructure, Transport Malta, Malta Public Transport Services (Operations) Limited and Malta Public Transport Services Limited, prevents any contract, agreement or arrangement from being made with Spanish bus operator Autobuses de Leon or its Maltese subsidiary Malta Lines Limited.

Island Buses, the Maltese consortium, claimed that the parameters of the expression of interest were changed by the contracting authority in such a way that Autobuses de Leon were not going to be operating the full service, as originally requested in the EOI.

In doing so, it alleged that Transport Malta exercised discretion beyond the scope of the powers conferred upon it by the EOI and the law.

The company further claimed that the Spanish operators were aware that the initial subsidy which they requested was insufficient to operate the service and had planned all along to increase the subsidy requirement after winning the concession, effectively undercutting the competition.

"In other words it appears that the bid by Autobuses de Leon, if not initially inadmissible, certainly changed considerably in the course of discussions, with the end result not being within the parameters laid out in the EOI," the Maltese bidders said, adding they would have tabled a different bid if they knew there were going to be variations in the subsidies, it said, it would have tabled a different bid.

Island Buses added that there was no opportunity for it to lodge an appeal during the timeframe specified in the process, because they were not informed that the offer chosen was outside the specified parameters, or that these parameters were subject to negotiation, before that time window elapsed.

Describing the final result of the tender is a public service concession and not a contract, the plaintiff company claimed the process was not regulated by the Public Contracts Regulations, but by the terms of the call itself.

The court will hear submissions on the matter on 27 November.