The pandemic was used to breach procurement rules and award an “illegal” €2.5 million cleaning contract, according to a complaint filed against the government.

In the complaint to the Public Contracts Review Board, a cleaning company alleges that the Education Ministry violated local and EU law when it issued a multi-million-euro contract without a competitive tender.

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

But, in August this year, the Education Ministry tasked the company to do the same job, this time awarding a contract by negotiated procedure, claiming the COVID-19 pandemic presented “extreme urgency”.

Rival cleaning company Managing Consulting Service Industry Limited disputes this and wants the contract to be declared null and void. They claim “there is evidently no case of extreme urgency as contemplated in the law”.

Not a case of extreme urgency

“Urgency caused by the contracting authority’s negligence or delay to issue a new tender does not qualify as ‘extreme urgency’,” the complaint reads.  

They are also requesting the ministry be fined up to €50,000, to dissuade it from signing similar “illegal” contracts in the future and to pay damages.

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

These included cleaning toilets at least three times daily, cleaning all common resources and tools shared among students as well as increased wiping down and cleaning of surfaces, handles, railings and other grips.

The ministry says that this extra work meant that the predetermined number of cleaning hours in the original tender was reached well before the end of that contract. 

The claimant, on the other hand, insists that the urgency that led to the scrapping of a tendering process had, in fact, been caused by the ministry’s “negligence and delay”, as it only moved to go for a negotiated procedure several months after it became aware of the problem and “on the eve” of the issuing of a new tender. 

Complainant learnt ministry awarded the contract by pure accident”

The complaint reads that the ministry was duty bound to issue a fresh, fair, open and non-discriminatory competitive tender procedure following the lapse of the 2018 tender and not resort to the negotiated procedure without prior publication.

According to documents submitted to the PCRB, it was “by pure accident” that, in August this year, the complainant learnt that the ministry had awarded the contract, by negotiated procedure, for a total value of €2,460,647.

The government says this was meant to cover 295,711 hours of cleaning across all state schools in Malta and Gozo. In its reply, the Education Ministry defended its position. 

It said that the original tender, awarded in 2019, draws to a close on December 31, 2021. 

The contract, the ministry says, is for a predetermined number of hours of cleaning. 

Since the beginning of 2020 until the present day, the education sector has been dominated by the COVID-19 crisis, the ministry argued.

“At that time in early 2018, nobody could have envisaged the COVID-19 health crisis,” the ministry said. 

Given this situation, the ministry said it had sought the approval of the government’s General Contracts Committee to issue the negotiated procedure in April 2021. 

This was given after the ministry said the matter was “of extreme urgency brought about by unforeseeable events”. 

The ministry also warned that rendering the contentious contract null and void would have adverse consequences for both teachers and students. 

It says there are “overriding interests of public health and education” and adds that the contract in questions is merely “a stopgap measure”. 

Had the COVID-19 pandemic not emerged, the original tender contract would still be in force, and it would not have needed to resort to the negotiated procedure, the ministry concluded.

On its part, the company awarded the contract has also defended the process, saying it was correct and should not be scrapped.

In representations made to the PCRB, the company, through its lawyers mirrored the government’s arguments and called on the board to dismiss the complaint. 

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