The Court of Appeal has dealt a blow to local listed company Luxury Living Technologies in a judgement delivered earlier this week where it threw out its “irrelevant” arguments to be considered for a major public contract.
The decision comes despite the company's claim that the public stands to save around €1 million if its bid were to be accepted.
The case revolves around a public tender issued by the Regulator for Energy and Water Services on behalf of the Ministry for the Environment, Energy and Enterprise whereby it would provide financial support for electricity generated from new renewable energy installations by the private sector.
The total tender allowed for multiple winners, since the total capacity for which state support would be provided was 19,000kW – with the possibility that it would take more than one installation to generate that total.
In fact, no bidder presented an offer for a capacity of over 10,000kW, so more than one bidder was finally awarded the tender.
Luxury Living Technologies submitted multiple bids for installations with capacities between 1,380kW and 7,000kW.
However, at least one of these bids, concerning a 26,000sqm site in Mqabba, was disqualified because the Planning Authority had not yet issued a screening letter, but only an acknowledgement that a screening application had been submitted.
The company pointed out that the size of the site led to delays in the PA’s issuance of the necessary documentation, which stretched on for months.
Moreover, Luxury Living Technologies argued that the contracting authority had unilaterally extended the validity period (of 90 days) of the bids when it finally awarded the contracts after that time had passed.
The same arguments were made before the Public Contracts Review Board, but after being rejected in that forum, Luxury Living Technologies took the case to the Court of Appeal.
Presided by Chief Justice Mark Chetcuti, Judge Giannino Caruana Demajo and Judge Anthony Ellul, the Court of Appeal rubbished the case, criticising the “contradictory and inconsistent” behaviour of the appellant and its “irrelevant” arguments.
Regarding the screening letter, it said that a letter of acknowledgement is “obviously not the same” as a screening letter, and the competence to decide whether the content of the former provides any certainty as to the issuance of the latter is entirely outside the adjudication board’s competence.
It also made it clear that the 90-day validity period of the bids is binding on the bidders, which must provide that product or service at that price if contracted within that period, but can otherwise refuse – making no obligations on the contracting authority to conclude the procedure within that timeframe.
The decision piles further stress on Luxury Living Technologies, which was earlier this year served with a garnishee order for an unknown amount, while for the financial year ending 30th June 2023, it posted revenues that were less than a third of what it projected.
At the time, it attributed the discrepancy to “commercial sales of photovoltaic systems which did not materialise due to issues faced with bureaucracy within local regulators.”
