The Macau SAR government says it will not abide by a ruling of the Court of Final Appeal that a construction tender be recalculated after officials committed a mathematical error. But first, the courts will have to agree.
Last month, the Court of Final Appeal ruled that the tender for the construction of a depot for the Light Rail Transit system needed to be reassessed, after one of the interested parties claimed that there had been an incorrect calculation of the company’s points performance in the bid.
The verdict followed a months-long legal battle in which even Chief Executive Chui Sai On weighed in, arguing that the courts had no authority to intervene in the awarding of a contract, which was a purely administrative matter.
That intervention was rejected by the Court of Final Appeal, which found that the administrative entities behind the tender had no legal basis to compel the courts to respect the government’s decision.
Referring to article 175 of Macau’s administrative code, the government now says that to abide by the ruling of the court would be detrimental to the public interest.
Article 175 states that the government is permitted to exempt itself from a court order “when there is absolute and serious harm to the public interest in complying with the decision.”
Macau’s Transportation Infrastructure Office noted in a statement that, “at present, more than 90 percent of [the] construction contract for [the LRT depot] is completed and what remains to be done consists fundamentally of final adjustments, tests and inspections.”
“It is expected that this contract will be terminated before the end of this year,” and as such, “if the contract is re-awarded for the small part that has yet to be completed, the time needed for the administrative procedures involved, for the mobilization of personnel, machinery and equipment and for the transfer of work, will have a major impact […] on the installation of the Light Rail System in Taipa.”
“The government is not defying the court or disobeying the court ruling,” local lawyer Jorge Menezes told the Times yesterday. “The government is making use of a faculty provided for by the law.”
“There are situations in which it is lawful for the government to claim that abiding by a court judgment would be highly detrimental to the public interest,” he explained. “In those situations, if the court agrees with the government, […] the company at stake can pursue compensation against the government.”
Another lawyer in Macau, who requested to speak anonymously, confirmed Menezes’s interpretation. The lawyer told the Times that the decision is not unprecedented and that it is lawful provided that the courts accept the government’s interpretation that compliance would harm the public interest.
Nevertheless, it is possible that the government will have to compensate the appellant company out of its own coffers.
Menezes said that, should the courts agree with the government’s interpretation, then the relevant parties may discuss compensation. Alternatively, if the courts order the government to abide by the judgment anyway, then the individual person responsible will be fined per day of non-compliance.
“Either the Court of Second Instance will force the government to comply with its January ruling (confirmed by the Court of Final Appeal) if it concludes that complying with the ruling would not be highly [harmful] to the public interest, or the parties will end up discussing compensation,” he said.
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