Issue link: https://maltatoday.uberflip.com/i/1031063
9 maltatoday | SUNDAY • 23 SEPTEMBER 2018 MATTHEW AGIUS A court has thrown out a re- quest for an injunction against a newly-formed company be- ing awarded the Gozo ferry service contract despite a con- dition requiring experience, holding that there was no evidence that its competitor would have won the tender. Virtu Holdings Ltd had ap- plied for a warrant of prohibi- tory injunction against Gozo Channel and its holding com- pany to prevent it from enter- ing into an agreement with Islands Ferry Network Ltd for the provision of fast ferry services between Malta and Gozo. The issue arose after a call for proposals for the Public Service Concession Contract for the Provision of Passen- ger and Vehicle Ferry Services in Malta and Gozo in Janu- ary 2018, which fell under the authority of the Ministry for Transport, Infrastructure and Capital Projects, according to the tender. In accordance with the ten- der, Gozo Channel had issued a call for interested parties who might consider partner- ing up with it to participate in the tender. According to the call, prospective partners had to have the necessary experi- ence, expertise or resources to provide fast ferry services, as Gozo Channel lacked this capability. Virtu Ferries Ltd made its offer on 23 Feb 2018 and was rejected, being told it was not the most financially competi- tive offer. Instead, Gozo Chan- nel chose the recently-formed Islands Ferry Network Ltd, whose shareholders are Magro Brothers Investments Ltd and Fortina Ltd. Subsequently, Virtu request- ed the Board for the Revision of Public Contracts to rescind Gozo Channel's decision be- cause Islands Ferry Network Ltd, which had just been set up, lacked the financial stabil- ity and the technical capacity to fulfil the duties and had no experience in fast ferry ser- vices. In late August, the Board rejected the request and an appeal was filed. In its ap- plication for the injunction filed last week, Virtu declared that it was considering a case for judicial review under the Code of Organisation and Civil Procedure, insisting that Gozo Channel's decision went beyond the scope of its powers. In a decision handed down last Thursday, the First Hall of the Civil Court, presided by judge Anthony Ellul ruled that at first glance it appeared that Gozo Channel itself had recognised the fast ferry ser- vice would mean an acquisi- tion under Public Acquisition Regulations. The court noted that the fact that there were no other pend- ing negotiations appeared to make the Islands Ferry Net- work Ltd and Gozo Channel agreement a fait accompli. It observed that the Revision Board had concluded that this was not a case of public pro- curement but a simple call for interest from one economic operator to another to par- ticipate in partnership for the sole objective of submitting an offer to a tender for a public service obligation. This type of consultation should take place before ac- quisition proceedings by the contracting authority, noted the court. In this case Gozo Channel had signed a charter party agreement with Islands Ferry Network Ltd for the fast ferry service between Malta and Gozo, subject to a suspen- sive condition should it not be the recommended bidder in a future tendering process. "It is obvious that Gozo Channel already took the de- cision about who it would be giving the fast ferry service to in the eventuality that it wins the tender and had bound it- self with a contract," said the court. The court said it had taken into account the fact that Is- lands Ferry Network Ltd had only been incorporated days before the tender was issued, but said that there was insuffi- cient prima facie evidence that the tender would have been won by Virtu. At the moment it was clear that the govern- ment tender was suspended and nobody could therefore present a tender, said the court. This meant that there was no actual necessity for the injunction as the tender was suspended. Furthermore, added the judge, from the testimony of Virtu's director Mark Por- telli, the company was clearly keeping its options open and would submit a tender either together with Gozo Channel or independently. The court therefore rejected the request for an injunction. NEWS Court dismisses injunction against newly-formed fast ferry service bidder On 14 April 2018, the Ministry for Gozo announced that Gozo Channel had concluded the process leading to a fast ferry service starting between Malta and Gozo