A court has ruled that the government broke procurement rules when it used the pandemic to hand out a multimillion-euro cleaning contract.

The €2.5 million negotiated procedure contract – a direct order by another name – was issued to a cleaning firm by the Education Ministry to clean schools at the height of the virus pandemic.

The contract has already ended but the court decision, handed down last month, means that the state will now likely have to pay compensation.

In 2019, Brightness JV, a joint venture between local firm Specialist Group Cleaners Ltd and Italian company Diemme, won a two-year contract to clean all state schools.

Then, in August 2021, the Education Ministry tasked the company to do the same job, this time awarding a contract by ‘negotiated procedure’, claiming its hands were tied by the virus outbreak.

Justifying the decision, the ministry claimed there was an “extreme urgency” due to new protocols issued during the outbreak and it could not wait to go through the lengthy tender process ‒ schools needed cleaning, especially during a pandemic, they argued.

What did the guidelines mean?

In 2021, the Health Ministry released protocol for what it described as ‘enhanced cleaning’ in schools. These, however, contained no material changes to guidelines already issued a year earlier.

The guidelines meant toilets had to be cleaned at least three times daily, all common resources and tools shared among students were to be regularly washed as well as surfaces, handles, railings and other grips.

State will now likely have to pay compensation

The ministry claimed that this extra work meant that the predetermined number of cleaning hours in the original tender was reached early, and a new contract was needed urgently. 

However, a rival cleaning company suspected the government of trying to prefer Brightness JV over others.

Managing Consulting Service Industry Limited said that the urgency which led to the scrapping of a tendering process had, in fact, been caused by the ministry’s “negligence and delay”.

The authorities had only moved to go for a negotiated procedure several months after it became aware of the problem.

Moreover, it had done this literally “on the eve” of the issuing of a new tender. 

The government was, in effect, circumventing the open tendering process, blocking others from being in with a chance of winning the contract. 

Court overturns public sector decision

The matter went before the Public Contracts Review Board, and the complainant asked the contract to be declared null and void.

The board threw out the complaint but the complainant did not stop there, going on to take the matter to the court of appeal. 

The court, presided by Chief Justice Mark Chetcuti and judges Joseph Micallef and Tonio Mallia, ruled that the contract be declared null and ineffective. 

“From the way the government behaved in the case, it clearly results that the urgency, if there was any, was created by the government itself through its procrastination,” the judgment reads.

“The competent authority, that dragged its feet on the issue, cannot, after time has passed, say that the issue had become urgent.”