Issue link: https://maltatoday.uberflip.com/i/453115
maltatoday, WEDNESDAY, 28 JANUARY 2015 7 Back then Muscat criticized Prime Minister Gonzi for "humiliating himself " when he asked for BWSC's permission to publish the agree- ment reached on the new plant and then having to wait a week before he was granted permission to pub- lish only parts of this contract. The debate followed a report by the Auditor General who had full access to the report in which he found no hard evidence of corrup- tion but noted serious administra- tive shortcomings. Significantly the public was in- formed which items were being withheld from publication. For be- fore the agreement was published BWSC listed 11 items which, it in- sisted, should remain confidential and which could not be published. These included information on the diesel engine and the generator and 132kV GIS switchgear designed by Siemens. The reason cited for this was the "confidential and pro- prietary information" belonging to BWSC's suppliers. It also asked for letters from banks, including the European Investment Bank, diesel engine manufacturers and a list of sub-suppliers and sub- contractors not to be made avail- able along with all the information about Wärtsilä, a leading diesel engine manufacturer, and a letter it sent to Enemalta in 2008. It insisted that only one hard copy could be tabled in the House of Representatives and that no fur- ther hard copies or soft copies were handed out to third parties. How agreements in other sectors were published: The present government has not published its power purchase agreement with ElectroGas Limit- ed. This means that the two agree- ments regulating the sale of energy to Enemalta remain shrouded in mystery. Neither has the government pub- lished its agreement with Henley & Partners, the main concessionaires for Malta's sale of citizenship pro- gramme and its agreement with Spanish transport company Auto- buses de Leon. Under the previous administra- tion the 128 page contract with Arriva was tabled in October 2011. Commercially sensitive informa- tion was omitted from the pub- lished documents. In 2010 then opposition leader Joseph Muscat criticised the Na- tionalist government for excluding crucial information about Palumbo Spa from the due diligence report it had presented to parliament along- side the agreement. Muscat claimed that the report excluded the memorandum and articles of association of the Ital- ian company, reference to its back- ground and standing and also the submissions made by the company itself. In February 2007 former Invest- ment Minister Austin Gatt tabled the voluminous draft agreement reached between the government and Tecom Investments on the de- velopment of the SmartCity project as well as the memorandum of un- derstanding and articles of asso- ciation of SmartCity (Malta) Ltd, a joint venture in which the govern- ment owns a nine per cent stake. A master plan regulating land use on the site was also published. The agreement between the gov- ernment and Tecom on the priva- tisation of Maltacom was tabled in parliament by Austin Gatt in Octo- ber 2006. News governments compare The agreement between the government and Tecom on the privatisation of Maltacom was tabled in parliament by Austin Gatt in October 2006 Former Privatisation Unit head defends legal services procurement MIRIAM DALLI THE former chairman of the Pri- vatisation Unit defended a decision adopted by the entity under which the PU would choose five or six legal firms and ask them to sub- mit their offers when legal services were required. Manuel Ellul, who for 13 years served as the chairman of the Pri- vatisation Unit (PU) of the Malta Investment Management Compa- ny Limited (MIMCOL), appeared before the parliamentary public accounts committee, debating the Auditor General's findings into an investigation of the procurement of legal service by the PU between 2008 and 2013. During the period under review, the services of three legal firms – Fenech & Fenech Advocates, Mamo TCV and GVTH – were procured with cumulative fees amounting to €536,439. During the same period, the PU undertook three privatisation proc- esses: the privatisation of Malta Shipyards Limited (MSL), which commenced in 2008; the yacht marinas privatisation processes, also initiated in 2008; and the re- concession for the rights of the Na- tional Lotteries in 2011. The total government income through these privatisation proc- esses amounted to €180 million. "When you have such a respon- sibility on your shoulder and when you have to make sure that the gov- ernment is well represented legally in such huge processes, you just don't go to any firm. You need a firm that is well-equipped to sup- port you in any issue that arises; and that has the manpower to spare as many lawyers as it can to your project," Ellul said. In reply to government MPs, Ellul admitted that the scheme adopted by the PU may have excluded firms that were as good but insisted that nothing could be taken for granted. "With my experience I knew who could help us and who could not. If a firm doesn't have enough resourc- es, how could it help us? When you are in a position of responsibil- ity you have to make sure that the lawyers follow EU directives and EU regulations and if the tendering process is challenged you know that the firm which is representing you can win the case," he said solidly. Fenech & Fenech, who represent- ed the PU in the privatisation of the Malta Shipyards, the Ricasoli Tank Cleaning Facility and the Yacht Marinas, took home €391,880. Ellul said the criteria had always been the capability of the firm: "At the beginning, the PU used to issue calls but only recently graduated lawyers used to apply. And you can't work with that. So, after five years of issuing a general call, we started going to five or six legal firms ex- plaining to them what we required and they would explain their offer and the services that came with that. We knew that the companies we were going to were good." He explained that during the pri- vatisation of the Malta Shipyards, a meeting was held with then fi- nance minister Tonio Fenech and infrastructure minister Austin Gatt. According to Ellul, the pri- vatisation process could not be de- layed "because the EU was chasing the government". "The government told us it was urgent and, on the basis of their ex- pertise, we immediately opted for Fenech & Fenech. They specialised in maritime, had already repre- sented the dockyard in a court case – so they were well-informed of the situation – and they had also been representing the government con- testing the EU's call to close down the dockyards. On that basis we called Ann Fenech's office and set an appointment there and then." In the case of the national lotter- ies re-concessions, the PU issued a request for proposal among six firms and the cheapest one was chosen. Legal firm Mamo TCV were chosen for the privatisation of the Yacht Marinas but Fenech & Fenech Advocates were once again called in when concerns arose mid- way through the process. "There were concerns that one of the preferred bidders – a joint venture among yacht owners – could kick out other yacht owners who did not join in. We could not ignore these rumours and decided that we should engage Ann Fenech who helped us eliminate this risk," Ellul said.