Court revokes hearing device tender over compliance issue

A Court of Appeal has revoked the Evaluation Board’s decision on a tender for hearing devices, and ordered them to examine the technical compliance of the products, in a case between OK Ltd versus the Director of Contracts, the Central Procurement and Supplies Unity (CPSU) in the Ministry of Health, and the Permanent Secretary in the Ministry for Health.

The appeal was presented before the court, which was presided over by Chief Justice Silvio Camilleri, Justice Tonio Mallia, and Justice Joseph Azzopardi, following the decision taken on 7 March 2017 by the Board of Review for Public Contracts.

The tender in question involves a public offer made by the ministry for the supply of bone conductive hearing devices for children and adults with a mild to severe hearing loss or single sided deafness.

The Ministry received three offers, including the one from OK Ltd, but the contract was awarded to Med-El Elektomedizinische Geraete GnbH Unita’ Locale.

OK Ltd claimed that Med-El’s offer was not technically compliant since the devices they were offering did not cater for patients under the age of 5, and should thus be discarded as, “it did not comply with this basic requirement while on the other hand, OK Ltd’s device catered for all ages.”

It was also claimed that MedEl’s offer failed to address the technical requirements of sound processors, wearing options and power range, which were mandatory features.

The appellant went to say that the CPSU should have compared both OK’s and Med-El’s offer in order to discover the supremacy of the appellant’s Bid.

The CPSU did admit that they “were not aware of the technical details of the awarded device.”

The Contracting Authority then requested that the Evaluation Board compare the technical data.

It was also established that ages of children and adults should, as according the UN Convention on the Rights of a Child, be as follows; from birth till five years is to be considered an infant, five to eighteen years is to be considered a child, and from eighteen upwards an adult.

The CPSU then said that the recommended bidder’s offer did cater for children as it could be used from the ages of five upwards.

The Court of Appeal could not accept these distinctions and said that the English term ‘child’ and the Maltese ‘tfal’ differ in meaning, and that the former included people aged three to five.

It was also noted that the awarded device was the more expensive option and was fully compliant in the procedure.

The Court then claimed that the board abdicated its duty when it did not examine if the awarded product was technically compliant.

It also took umbrage with the board’s belief that it was not its jurisdiction to assume doubt on the decision taken by the Evaluation Board, noting that regulations state that Board is to address non-compliant offers and provides the Board with the power to appoint experts to evaluate the products.

“Once the product was deemed to be not technically compliant, the Board had to examine the products from a technical standpoint.”

The court also noted that the contract should have been recommended to the cheapest product, which also satisfied the technical criteria. “No one from the Evaluation Committee and Board examined the offer of the appellant.”

The criteria for award stated that the, “contract will be awarded to the cheapest priced tender satisfying the administrative and technical criteria.”

The court thus revoked the decision by the board, and requested them to evaluate whether or not the products are technically compliant.

The court expenses are to be paid by the Ministry for Health.