The signatures required in bids for tenders are important because a tender is a form of a contract and the signature when required makes those parts of the tender binding. This was held in a judgement delivered by the Court of Appeal presided over by the Chief Justice Mark Chetcuti, and judges Giannino Caruana Demajo and Anthony Ellul on 31 August 2021 in PR20 JV konsorzju magħmul minn Rockcut Limited and Pato SRL -v- Direttur Ġenerali tad-Dipartiment tal-Kuntratti, il-Korporazzjoni għas-Servizzi tal-ilma u Bianco Impianti Srl.
The appeal concerned a tender issued by the Water Services Corporation on the construction of a pipes distribution network from Marsascala to Bulebel.
The appellants and Bianco Impianti tendered. The latter won the tender. On 12 February 2021, the appellant’s bid was not accepted due to it not being technically compliant. The letter stated that the Quality Assurance plan was not signed, there were missing signatures on the declaration of the key experts, and one of the CVs was not comprehensive.
The appellants filed an objection and the Appeals Board held that the Appellant pointed out that the lack of a signature on the QA plan did not annul then bid. WSC rebutted by saying that the signature was not optional. Bianco also submitted that a signature on a QA Plan was a cardinal omission. The Board held that a tender document is a contract and such contractual obligations have to be endorsed and confirmed by a signature and therefore the WSC were correct not to accept the bid.
As to the missing signature of self-declaration of the key experts, the Appellant held that such declaration should be submitted by key experts who are employed by the public administration. The key experts in this bid were self-employed. WSC disagreed.
The Board referred to the General Rules governing Tenders published in April 2019 allows five days for rectification when requested. Furthermore, the bidder cannot decide how the forms are to be submitted and if it is not filled in corrected it will be considered as non-compliant.
As to the CV, the Board agreed with WSC that this particular CV leaves much to be desired. The Appellant held that the tender document did not require any specific experience from the stone mason, however, the Board held that one cannot ignore that a stone mason is an essential component of the project.
The Board dismissed the appeal.
The Appellants appealed before the Court of Appeal and asked the Court to revoke the decision. The first hurdle was a plea filed by the defendants, who held that a joint venture could not have appealed, because it does not have a juridical personality. The Court of Appeal held that the joint venture could have tendered and it is represented by two companies. Therefore, it turned down the plea.
As to the merit of the appeal, the Appellants held that the Board gave importance to clerical issues than those of substance. It also ignored parts of the procedure and interpreted the requests badly.
With regard to the issue on the lack of the signature on the QA declaration, the Appellants held that the bid was signed and that signature confirms all the bid. The bid included as quality assurance as requested. The Court of Appeal agreed with the Board that this document constituted as a binding legal document and it was not sufficient that reference is made to other signatures in the bid. The Court held that the signature was also there to authenticate the document.
If a signature was added after the submission date, this would not constitute a correction of the bid. Therefore, the signature on its own should not have invalidated the whole bid.
As to the key experts, the Court pointed out that the tender document required key experts to be submitted and it read:
“This declaration is to be submitted in respect of all key experts who either work with the public administration or in the private sector.
“In case of key experts who are not in the public administration a ‘not applicable’ declaration must be entered on the form and uploaded online.”
The Court held that the wording is clear in that all key experts must have declaration and that the bidder must state whether any are in the public sector or not. WSC cannot assume that the key experts are not in the public sector but it must be spelt out.
The Court held that WSC asked for a further explanation on this point from the Appellants, but they failed to give it. Therefore, this ground of appeal was rejected.
As the CV of the stone mason the Court of Appeal held that the fact that the tender document did not ask for information on the stone mason does not mean that the WSC should have any doubt on his competency.
The Court then moved to reject the appeal.
Av. Malcolm Mifsud
Partner
Mifsud & Mifsud Advocates
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