The Court of Second Instance (TSI) has ruled in favor of the decision taken by the government to exclude the consortium composed of CESLA ASIA – Investimentos e Serviços, SA and Focus Aqua, Limited from the tender on the “Operation and Maintenance of the Wastewater Treatment Plant of Macau Peninsula.” The consortium had appealed the decision taken during the evaluation stage of the tender.
At the time, and according to the decision of the TSI, the consortium “was excluded because it did not meet the requirement stipulated in the clause 6.2 of chapter II.2 of the tender program,” the clause referring to the experience of the companies in such a field.
In this way, the contract was awarded by order of the Chief Executive on August 5, 2016 to another consortium, “BEWG – Waterleau.”
In the ruling, and in response to the arguments used by the appealing consortium, the TSI noted, “in a relatively new field, such as wastewater treatment, the requirements are gradually becoming greater and more diverse. The criteria and technical requirements by which the tender should be governed (such as the qualification required of competitors) are from the exclusive competence of the developer,” adding, “Since the requirements were applied evenly to all competitors, it is not clear how a greater or lesser degree of rigor may be designed to make it difficult for the first applicant to be successful.”
Regarding the second ground of appeal used by the appellant, namely the length of the appellants’ experience, the collective court ruled, “clause 6.2 of the program obliges competitors to have, covering the past ten years, at least two completed or ongoing services related to the operation and maintenance of wastewater treatment facilities, each of them for not less than two years in duration,” noting, “Since the first applicant has only five years’ experience, the application obviously does not meet the requirement, even if that experience lasted more than five years.”
The court also noted that in the case of WABAG, the services provided were uninterrupted and without any gap, ruling that the fact that they were based on several contracts is not relevant, as the experience counted as a whole and lasted for more than two years, the TSI concluding that there is no alleged difference in treatment of the different bidders.
The last argument used by CESLA ASIA and Focus Aqua in the appeal was to note that one of the companies of the winning consortium (The Waterleau Group) had resulted from the merging between Waterleau Global Water Tecnology NV and another company, in which the former had a stakeholder and partner that had previously been convicted of the practice of active corruption in the case of the former Secretary Transport and Public Works, Ao Man Long.
The TSI refuted this argument by pointing out that none of the companies comprising the consortium that won the tender, nor its partners, had been convicted in any case in Macau, ruling “In these terms, this argument is also insubstantial,” maintaining in this way the decision made by the committee that evaluated the proposals.
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