A court has upheld an appeal by a failed bidder over a tender awarded by Water Services Corporation, observing that criteria laid down by the contracting authority itself were to be strictly followed so as to ensure equality and transparency in the tendering process. 

“The obligation of transparency is particularly necessary to ensure that there is no risk of arbitrariness by the contracting authority,” said the three judges presiding over the appeal filed by Attard Farm Supplies after the Public Contracts Review Board had turned down its claims over the tender that was won by Wurth Limited. 

It all started when Water Services Corporation (WSC) issued a public call for tender in September 2022 for those interested in entering into a framework agreement with the corporation for the provision of PPR (polypropylene random copolymer pipe) manifolds. 

These fittings were needed to “connect billing water meters in multi-tenant buildings to the inlet supply pipe”.

The tender document stated that the sole award criterion was the price, with the contract to be awarded “to the tenderer submitting the cheapest priced offer satisfying the administrative and technical criteria.” 

Six months later, Attard Farm Supplies (AFS) received a letter from the corporation informing that its offer had not made it since it was not the cheapest and that the contract was to be awarded to Wurth Limited at the price of €580,762.63.

AFS requested further information as to whether the winning bidder had produced a “pressure test certificate” confirming that the manifolds it offered could withstand the water pressure. 

They also asked whether the samples provided by Wurth had been tested in an ISO-9001-certified facility and whether each sample had a “unique and permanently marked identification number.”

By way of reply, WSC said that “the mentioned certification and markings were deemed not necessary at the evaluation stage”. 

Not satisfied with that reply, AFS filed an objection before the PCRB which, in May 2023, threw out the objector’s claim, declaring that the board “fully” agreed with the chairperson of the tender evaluation committee who had stated that “a pressure test and identifier number was requested in the tender but not at the evaluation stage”.

AFS took its grievances to court by filing an appeal from that board's decision. 

The Court of Appeal, presided over by Chief Justice Mark Chetcuti, and Justices Christian Falzon Scerri and Josette Demicoli, upheld the appeal, overturning the PCRB’s decision and ordering a fresh evaluation of the tender by a newly composed committee.

Moreover, Wurth’s offer, which the court deemed “invalid,” was to be excluded. 

The “bone of contention” concerned the fact that the winning bidder had failed to produce the pressure certificate as required in the tender documentation. 

Even if a pressure test was subsequently conducted by WSC, the corporation was not an ISO-9001-certified facility and any certification issued could never replace that coming from the original manufacturer of the product. 

Wurth argued that this was a technical matter in respect of which the court lacked competence.

'Rules are there to be observed not waived'

But the court held that the issue at stake was whether the bidders were to submit the certified sample in terms of the tender and that was not a technical matter. 

Contracting authorities must ensure that there is no discrimination among economic operators who are to be treated “equally and in a transparent manner whenever there is a call for tenders,” said the court. 

That is why a contracting authority must “observe strictly” the criteria laid down by itself when issuing the call. 

“The obligation of transparency is particularly necessary to ensure that there is no arbitrariness,” and that would not be achieved if the authority were to waive the conditions it first laid down, “ignoring or modifying” the tender criteria. 

In this case, one of the conditions was for each bidder to back the offer with “evidence that they meet or exceed certain minimum criteria” described in the call. 

That evidence included a “literature list” and among the items indicated thereunder was a “sample of pressure test certificate for manifold”.

Therefore, AFS was right in arguing that the certificate was to be provided together with the offer and Wurth, “as a reasonably well-informed and normally diligent tenderer” should have been aware of that condition.

Thus, its offer was “irregular” and invalid, even if the sample was later tested by WSC. 

“Rules are there to be observed not waived,” concluded the court, upholding the appeal, revoking the board’s decision, cancelling WSC’s recommendation and ordering a fresh evaluation process by new board members, without taking into consideration Wurth’s offer. 

Lawyers Mario De Marco and Ryan Bezzina assisted the appellant.