Hutney-Batemen, the Israeli company that unsuccessfully tendered for the €200 million contract for the Delimara power station, on Monday filed a judicial protest to overturn the decision to choose Scandinavian firm BWSC – just days after the government defended its choice by arguing that the unsuccessful bidders ‘had not appealed’ against the Director of Contracts’ verdict.
Legal experts have told MaltaToday that the judicial protest may be rejected on purely technical grounds, as the time-limit for submitting an appeal according to the tendering procedures had elapsed before the judicial protest was filed.
However, it remains debatable whether an appeal could even have been filed within the stipulated deadline, as Hutney-Batemen were not informed in writing of the outcome of their bid by the Director of Contracts, as stipulated by Clause 1.19 in the Contracts Department’s own instructions to bidders.
Instead, the decision to award the contract was published as a notice in the Government Gazette. Furthermore, Hutney Bateman claim they were only informed of this decision after enquiring as to the outcome of their bid.
The reply came on May 4 – after the 10-day appeal period had already expired.
The Israeli bidders’ attempt this week to halt proceedings through legal means nonetheless pours cold water on the government’s main arguments in defence of the contract. Both Prime Minister Lawrence Gonzi and Infrastructure Minister Austin Gatt have separately cited Hutney-Bateman’s failure to appeal as an indication that there had been no wrongdoing in the decision to award the contract to BSWC.
Now that an appeal has been lodged, this argument clearly no longer applies.
Hutney-Bateman’s bid involved the use of a Combined Cycle Gas Turbine (CCGT), which emits lower carbon dioxide volumes than the chosen technology – Diesel Engine Combined Cycle (DECC), which makes use of a more polluting fuel.
In its protest filed on Monday, the company rejected claims that its technology would be more expensive than DECC, arguing that the cost per kilowatt hour would be 15% cheaper in a gas-operated power station when compared to one that used heavy fuel oil.
Bateman also argued that CCGT would take up considerably less space at Delimara, and also emit less pollution.
Hutney-Bateman reiterated its main objections, published by MaltaToday last Wednesday, that the maximum permissible emissions rate was ‘strangely’ increased by Legal Notice after the call for tenders was issued; and that the rival technology would produce 90 tonnes of hazardous waste a day.
Most revealing of all, Hutney-Bateman revealed that in May 2008, it had been sent an email by mistake which revealed that the decision to drop its bid had already been taken.
MaltaToday is in possession of this email, sent by an Enemalta employee to senior officials on Thursday 22 May 2008 at 11.32hrs.
“I propose that an invitation should be sent tomorrow to BWSC and MAN, which submitted the best two offers for 100MW plant as evaluated so far,” the email reads.
When Hutney-Bateman drew the corporation’s attention to the fact that it had received this email, and was therefore cognisant of the rejection of its bid, the Israeli company was once again shortlisted, only to later discover that its bid had been rejected at a point when it was no longer possible to appeal.
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