Issue link: https://maltatoday.uberflip.com/i/517560
6 maltatoday, WEDNESDAY, 27 MAY 2015 News Claims of waiver 'undermining' government's position on Mater Dei MIRIAM DALLI THE Nationalist Party has accused the Labour government of under- mining its own position by claim- ing that a waiver on the contract with Swedish construction firm Skanska, on Mater Dei Hospital, prevents it from seeking responsi- bility on weak concrete structures at the A&E department. Independent engineers Arup confirmed that concrete used at floors eight and nine of the hospi- tal's A&E was of inferior quality, in breach of tender specifications. Shadow health minister Clau- dette Buttigieg and PN executive president Ann Fenech said that the government had weakened its posi- tion in claiming it would not seek redress from all those responsible for the weak concrete at MDH. "The government must change its strategy and instead of playing the victim, seek action on the allega- tions of inferior concrete inside the MDH blocks," Buttigieg said. Fenech, a lawyer, said that the waiver the government was claim- ing would prevent it from seeking redress did not exclude it from tak- ing those responsible to court. "The law does not allow anyone who carried out these works to be exonerated by a waiver," Fenech said. She cast doubts on the serious ex- tent of the waiver, arguing that the position adopted by the govern- ment was "very strange". "If the government wanted to build a solid case against Skanska in court, it shouldn't be exposing its defence. The government's own declarations place it in a very weak position in any negotiations that might take place with responsible parties. Why is the government putting its back against the wall?" The Project Closure Agreement that includes the controversial waiver was signed in 2009 between the Foundation for Medical Serv- ices and Skanska. Buttigieg asked: "Whose interests are Prime Minister Joseph Muscat and health and energy minister Konrad Mizzi defending? The gov- ernment must send for whoever provided, laid, and tested that con- crete." She also challenged the govern- ment to publish the tenders for the construction of Mater Dei Hospital, with specifications of the concrete included, the results of the tests carried out on the buildings, and the full report and terms of refer- ence for Arup, the firm that carried out the tests on the concrete earlier this year. The PN yesterday also accused the government of failing to avert a potential conflict of interest by having retired judge Philip Sciber- ras lead an inquiry into responsib- lity for the concrete structures at Mater Dei Hospital. Judge Sciberras is father to law- yer Alex Sciberras, who is engaged with the health and energy min- istry but also appears listed as a 'secretary' on the Foundation for Medical Services board. A govern- ment source told MaltaToday that Sciberras is not the FMS secretary. The PN insisted that Sciberras's appointment on the inquiry is a conflict of interest, since his son could be participating in the in- quiry proceedings himself. The inquiry led by Philip Sciber- ras – launched in September 2014 – will be analysing the criminal and civil liability from the inferior work carried out. In a reaction, the government accused the Opposition of being caught up in a panic by attempting to shed doubt about the "scandal- ous waiver" signed by the National- ist government at the time. In a statement, the energy and health minister Konrad Mizzi said that Opposition leader Simon Bu- suttil had first ridiculed the seri- ous allegations, by saying that the building had not collapsed in 20 years. "To the contrary of the impres- sion being given by the Opposi- tion, the waiver will not stop the government from doing its best to safeguard its commercial, civil and criminal justice rights at law." Mizzi said the real question was why that waiver had been intro- duced when the project closure agreement had already addressed outstanding matters on the Mater Dei hospital between the preceding government and Skanska. "We ask the Opposition why the preceding administration gave this waiver, and whether the admin- istration had asked the Attorney General for its advice," Mizzi said. Health and energy minister demands PN to explain why former administration gave waiver to Skanska PN executive president Ann Fenech (left) and shadow health minister Claudette Buttigieg Gonzi says waiver cannot exonerate bad workmanship CONTINUED FROM PAGE 1 On Mon- day, Mizzi said that the Project Closure Agreement (PCA) waived claims that had been put forward by the two sides and an agreement on the work that had to be final- ised by Skanska: "It should have stopped there but, out of the blue, the blanket waiver was included on the very last page of the agree- ment." The former prime minister how- ever said that the PCA does not exonerate bad workmanship or any fraudulent activity that might have taken place. "I understand that the wording covers outstanding issues raised and negotiated between both par- ties, but does not include waiver of bad workmanship and/or fraudu- lent activity or any other statutory responsibilities according to Mal- tese law," Gonzi said. He added: "In any event I would have never authorised or counte- nanced such a blanket waiver." MaltaToday also asked Gonzi who should shoulder responsibil- ity for the concrete used and the waiver and whether he had ever received any communication of any sort suggesting that concrete of inferior quality had been used. No reply on these two questions was forthcoming. The Project Closure Agreement was signed by then FMS chairman Paul Camilleri, Joseph Fenech rep- resenting sub-contractor Blokrete and a representative of Skanska. Camilleri is presently not avail- able for comment due to health issues. On their part, Skanska told Malta- Today that they were not in a position to comment as yet. "This project was executed a long time ago. Many of those who worked with it are no longer with the company. We have not seen the in- vestigation by Arup. We will of course look into this, but we need time before we can have an opinion in detail account for this matter. Before the letter of Minister Mizzi last week, we had not been contacted by anyone," Skanska's head of media relations, Edvard Lind, said. Bastjan Dalli denial In a statement, the owner of Mix- er Ltd, Sebastian Dalli, has denied having supplied most of the con- crete for the construction of the Mater Dei hospital's Accident and Emergency Department. Dalli, brother to former minister John Dalli, was referring to com- ments by shadow health minister Claudette Buttigieg on Monday's Reporter on PBS. "I supplied a very small fraction of the concrete for the Mater Dei project and I did this as a supplier to one of the subcontractors with whom I had a long standing rela- tionship well before the Mater Dei project started," Dalli said, refer- ring to Blokrete. "I also state that in 1996 I never supplied concrete to the Mater Dei project alone as there were always other suppliers and contractors involved. I did not supply any con- crete to Mater Dei from end-1996 onwards. I was never a subcon- tractor on the project." 'Reciprocal waiver of claims' already included The full Project Closure Agree- ment (PCA) was drafted to waive all contestations and claims which were raised by the Foundation for Medical Services and Skanska Malta Joint Venture (SMJV). The PCA was found in a safe at the Foundation for Medical Serv- ices with a number of other sensi- tive documents, isolated from the rest of the documents pertaining to the Mater Dei Hospital. Split in 10 clauses, the PCA fo- cused on the reciprocal waiver of claims, variation orders, works to be performed by SMJV, acceptance, guarantees, disputes, confidential- ity and the infamous waiver. What raises questions about the waiver is that the second clause, titled the Reciprocal Waiver of Claims, clearly stipulated that both sides were waiving the con- testations and claims that were being raised. The PCA was signed after the parties "discussed and negotiated an agreement whereby SMJV shall take certain actions to close off the Works" while the FMS "agreed to assume certain obligations in order to allow SMJV to close-off the said Works". The two sides also agreed to a variation order of €5,125,000 and a lump sum of €346,512,802, with FMS agreeing to pay the variation order amount by no later than 30 days from the signing of the agree- ment. The PCA went on to list the works which SMJV had to carry out by no later than 30 June, 2009. With the exception of the pend- ing works listed in the PCA, it was agreed that the rest of the works were deemed to be completed and accepted. Former social policy minister John Dalli, reacting to a copy of the PCA which MaltaToday man- aged to obtain, said this was the first time he was seeing the con- tract. "Now that I have seen the document, and I'm not a lawyer, I don't think that there is a blan- ket waiver because both parties retained in the contract the rights they may have under Maltese law," he said.