An application by Virtu Ferries in its attempt to block Gozo Channel from proceeding with its plans to operate a fast ferry service with its selected partner, Islands Ferry Network Limited, has been declined.
This was because the current suspension of the tender meant that there was no actual need for such a remedy at this stage.
In his decree, handed down in the First Hall, Civil Court, Mr Justice Anthony Ellul observed that the first request by Virtu Holdings Limited - for the court to order Gozo Channel from refraining from entering into any contract with Islands Ferry Network Ltd - was rather too late.
The court had been presented with a ‘fait accompli’ since the respondent company had already signed a charter party agreement with its selected partner and there appeared to be no further ongoing negotiations for any other agreement in this regard.
As for the second request - to order Gozo Channel to refrain from putting into effect its contract with Islands Ferry Network pending a decision on the merits of the case - the Court concluded that once the Public Service Obligation tender was currently suspended, there was effectively no actual need for the prohibitory injunction as requested.
In assessing the facts of the case, Mr Justice Ellul observed that when signing the charter party agreement, Gozo Channel had already taken a decision as to who was to operate the fast ferry service should it be awarded the tender.
In fact, the state company had bound itself contractually to Islands Ferry Network, the Court observed.
At first glance, the sourcing of this service was a procurement under the Public Procurement regulations, the court went on, further questioning how Gozo Channel could have selected as partner a company “born three days earlier” and owned by shareholders unknown to the fast ferry market.
The technical member on the evaluation committee, Kurt Gutteridge, had testified that in its bid ISFN had “made no reference to experience” and this in spite of Gozo Channel’s repeated insistence of seeking a partner having “the necessary experience, expertise and resources to provide fast ferry services,” the court continued.
As for the necessary document of compliance, the Court noted that a company registered on April 10, 2018 could not have possibly obtained this document three days later when Virtu Ferries had been informed that it was not to be the chosen partner.
Moreover, how could a company registered in April have filed a bid once the deadline for the preliminary market consultation had been February 23, 2018, the Court observed.
Whilst noting that the choice of partner did not depend solely on experience, but also financial factors, the Court concluded that such considerations fell beyond the scope of the injunction proceedings.
Moreover, there was nothing stopping Virtu Ferries from bidding for the tender and contesting the eligibility of IFN should the tender be awarded to Gozo Channel.
Meanwhile, in a comment to Times of Malta, Ann Fenech, as counsel to Virtu Ferries, stated that the company felt “totally vindicated by this decision because it proves what it has been saying all along, that Gozo Channel have chosen to bid with an entity which has failed miserably in satisfying the minimum technical and financial criteria as stipulated in the tender”.