177 tal-2005 - Regolamenti tal-2005 dwar kuntratti Pubbliċi

L.N. 177 of 2005

PUBLIC CONTRACTS REGULATIONS, 2005

Part I

General Provisions

Citation

Interpretation

Scope

Non-discrimination and confidentiality

Director of Contracts

Remedies - Competence of the Department of Contracts

Discretion to refer

General Contracts Committee

Special Contracts Committee

Contracts Committee

Thresholds

Requirement of approval before issue and publication of tender

Annual report

Applicability

Rules for calculating applicable estimated value

Non-applicability

Part II

Rules governing public contracts whose value does not exceed Lm20,000

Applicability

Scope

Procurement procedures for contracting authorities

Right of recourse

Part III

Rules governing public contracts whose value exceeds Lm20,000 but does

not exceed the thresholds

Applicability

Regulation

Part IV

Rules common to public contracts whose value exceeds Lm20,000

Applicability

Award procedures

Framework agreements

Dynamic purchasing systems

Award criteria

Special considerations relating to rules governing award criteria

Use of electronic auctions

Sub-contracting and conditions for performance

Joint and group tendering

Separate packages

Appeals Board

Statistical and other reports

Official lists

Part V

Rules governing public contracts whose value equals or exceeds the

threshold

Applicability

Number of tenderers

Negotiated procedures

Time limit for receipt of requests to participate and for receipt of

tenders

Maximum time limit

Time limit for public works concessions

Application of Council Regulation 1182/71

Invitation and information

Communication

Technical specifications

Variants

Competitive dialogue

EU notices

Qualitative selection criteria

Evidence of financial and economic standing

Evidence of technical capacity

Supplemental information

Report to Commission

Part VI

Types of Contract

Section A - Public services contracts

Scope

Application

Two-tier application

Design contests

After prior publication of an EU contract notice

Without prior publication of an EU contract notice

Information

Rejection of variants

Entitlement to carry out a service activity

Third countries

Section B - Public supply contracts

Scope

After publication of an EU contract notice

Without publication of an EU contract notice

Rejection of variants

Third countries

Section C - Public works contracts

Scope

Public works concession

After prior publication

Without prior publication

Design and construction of public housing contracts

Information

Third countries

Part VII

Public procurement of entities operating in the water, energy,

transport and postal services sector

Scope

Part VIII

Variation orders

Contracts awarded by authorities listed in Schedule 2

Contracts awarded by authorities listed in Schedule 3

Part IX

Contracts Committees

Contracts Committees

Part X

Functions of the Contracts Committees

Functions of the Contracts Committees

Part XI

Procurement Committees

Procurement Committees

Part XII

Separate packages in tender offer

Separate packages in tender offer

Part XIII

Procedure for the submission of appeals

Procedure for the submission of appeals

Part XIV

Public Contracts Appeals Board

Appeals Board

Repeal of Public Contracts Regulations, 2003.

SCHEDULES

Complete list of contracting authorities

Contracting authorities falling within the competence of the

Department of Contracts

List of contracting authorities who shall administer their own

public procurement in accordance with the provisions of these

regulations

List of Central Government Authorities

Public works contracts activities

Services within the meaning of regulation 56(1)

Services within the meaning of regulation 56(2)

Value of thresholds pursuant to regulation 11

Public contract notices

Schedule 10 List of products in the field of defence

Schedule 11 Requirements relating to devices for the electronic receipt of

tenders, requests for participation and plans and projects in

contests

L.N. 177 of 2005

FINANCIAL ADMINISTRATION AND AUDIT ACT

(CAP. 174)

Public Contracts Regulations, 2005

BY VIRTUE of the powers conferred by article 4 of the

Financial Administration and Audit Act, the Prime Minister and

Minister of Finance has made the following regulations:-

PART I

General Provisions

(1) The title of these regulations is the Public Contracts Citation and

commencement.

Regulations, 2005.

(2) These regulations shall come into force on the 3rd June,

2005.

Contracting Authorities falling within the competence of the Department of

Contracts

OFFICE OF THE PRIME

Permanent Secretary’s Office / Department of

MINISTER

Corporate Services

Internal Audit and Investigations Directorate

Planning and Priorities Co-ordination

Directorate

Armed Forces of Malta

Information

Government Printing Press

Electoral Office

Public Service Commission

MALTA COUNCIL FOR ECONOMIC AND

SOCIAL DEVELOPMENT

BROADCASTING AUTHORITY

MINISTRY OF FINANCE

Permanent Secretary’s Office / Department of

Corporate Services

Treasury Department

Inland Revenue Department

Capital Transfer Duty

Customs Department

VAT Division

Lotteries Department

Contracts Department

Economic Policy Division

LOTTERIES AND GAMING AUTHORITY

MALTA STATISTICS AUTHORITY

TAX COMPLIANCE UNIT

FINANCIAL INTELLIGENCE ANALYSIS

UNIT

COLLECTIVE BARGAINING UNIT

MALTA FINANCIAL SERVICES

AUTHORITY

MALTA STOCK EXCHANGE

MINISTRY FOR JUSTICE

Permanent Secretary’s Office / Director

AND HOME AFFAIRS

Corporate Services

Citizen and Expatriate Affairs

Notary to Government

Police Department

Civil Protection

Correctional Services

Government Property Division

Joint Office

Land Registry

Public Registry

Civil Registration

Attorney General

Judicial

Local Councils Department

MALTA ARBITRATION CENTRE

MINISTRY OF

Permanent Secretary’s Office / Department of

EDUCATION, YOUTH AND

Corporate Services

EMPLOYMENT

Education Division / Department of Finance and

Administration

Libraries and Archives

Examinations

Industrial and Employment Relations

JUNIOR COLLEGE

MALTA COLLEGE OF ARTS, SCIENCE AND

TECHNOLOGY

UNIVERSITY OF MALTA

FOUNDATION FOR INTERNATIONAL

STUDIES

FOUNDATION FOR TOMORROW’S

SCHOOLS

FOUNDATION FOR EDUCATIONAL

SERVICES

MALTA COUNClL FOR SCIENCE &

TECHNOLOGY

EMPLOYMENT AND TRAINING

CORPORATION

OCCUPATIONAL HEALTH AND SAFETY

AUTHORITY

INSTITUTE FOR TOURISM STUDIES

KUNSILL MALTI G}ALL-ISPORTS

COOPERATIVES BOARD

NATIONAL POOL TAL-QROQQ

MINISTRY FOR TOURISM

Permanent Secretary / Department of Corporate

AND CULTURE

Services

HERITAGE MALTA

MALTA COUNCIL FOR CULTURE AND THE

ARTS

ST JAMES CAVALIER CREATIVITY

CENTRE

NATIONAL ORCHESTRA

MALTA CENTRE FOR RESTORATION

SUPERINTENDENCE OF CULTURAL

HERITAGE

FONDAZZJONI PATRIMONJU MALTI

MALTA TOURISM AUTHORITY

MEDITERRANEAN CONFERENCE CENTRE

MANOEL THEATRE

MINISTRY FOR

Permanent Secretary’s Office / Department of

COMPETITIVENESS AND

Corporate Services

COMMUNICATIONS

Civil Aviation

Commerce Division

Consumer and Competitive Division

MALTA COMMUNICATIONS AUTHORITY

MALTA MARITIME AUTHORITY

MALTA STANDARDS AUTHORITY

MINISTRY FOR

Permanent Secretary’s Office / Department of

RESOURCES AND

Corporate Services

INFRASTRUCTURE

Works Division / Finance and Administration

Operating Units

Construction and Maintenance

Manufacturing and Services

Building and Engineering

Building Construction Industry Department

Cleaning Department

Oil Exploration

MALTA RESOURCES AUTHORITY

BUILDING INDUSTRY CONSULTATIVE

COUNCIL

MINISTRY FOR GOZO

Permanent Secretary’s Office / Department of

Corporate Services

Customer Services

Projects and Development

MINISTRY OF HEALTH,

Permanent Secretary’s Office / Department of

THE ELDERLY AND

Corporate Services

COMMUNITY CARE

Health Division / Finance and Administration

Elderly and Community Care

FOUNDATION FOR MEDICAL SERVICES

ZAMMIT CLAPP HOSPITAL

MATER DEI HOSPITAL

MOUNT CARMEL HOSPITAL

MEDICAL PRODUCTS REGULATORY

AUTHORITY

WELFARE COMMITTEE

MINISTRY FOR

Permanent Secretary’s Office / Department of

INFORMATION

Corporate Services

TECHNOLOGY AND

WATER SERVICES CORPORATION

INVESTMENTS

PROMOTION

ENEMALTA CORPORATION

MALTA NATIONAL LABORATORY

DATA PROTECTION COMMISSION

MITTS

INDUSTRIAL PROJECTS AND SERVICES

LTD.

PRIVATISATION UNIT

COLLECTIVE BARGAINING UNIT

MALTA ENTERPRISE

MALTA INDUSTRIAL PARKS

GOZO CHANNEL CO LTD

MINISTRY FOR RURAL

Permanent Secretary’s Office / Department of

AFFAIRS AND THE

Corporate Services

ENVIRONMENT

Agriculture Services and Rural Development

Food and Veterinary Services

Fisheries and Conservation Control

Environment

MALTA ENVIRONMENT AND PLANNING

AUTHORITY

WASTESERV MALTA LTD

MINISTRY FOR URBAN

Permanent Secretary Office / Department of

DEVELOPMENT AND

Corporate Services

ROADS

MALTA TRANSPORT AUTHORITY

MINISTRY FOR THE

Permanent Secretary’s Office / Department of

FAMILY AND SOCIAL

Corporate Services

SOLIDARITY

Social Security

Family Welfare

Social Housing

HOUSING AUTHORITY

FOUNDATION FOR SOCIAL WELFARE

SERVICES

SEDQA

APPO{{

NATIONAL COMMISSION FOR DISABLED

PERSONS

SAPPORT

COMMISSION FOR THE PROMOTION OF

EQUALITY FOR MEN & WOMEN

MINISTRY OF FOREIGN

Permanent Secretary’s Office / Department

AFFAIRS

of Corporate Services

INTERNATIONAL INSTITUTE ON

AGEING

For the purposes of these regulations, unless the context Interpretation.

otherwise requires -

''affiliated undertaking'' means any undertaking over which an

undertaking awarded a works concession may exercise, directly or

indirectly, a dominant influence or which may exercise a dominant

influence over the concessionaire or which, in common with the

concessionaire, is subject to the dominant influence of another

undertaking by virtue of ownership, financial participation or the

rules which govern it. A dominant influence on the part of an

undertaking shall be presumed when, directly or indirectly in relation

to another undertaking, it

(a)

holds the major part of the undertaking’s subscribed

capital, or

(b

controls the majority of the votes attaching to shares

issued by the undertakings, or

(c)

can appoint more than half of the members of the

undertaking’s administrative, managerial or supervisory body;

''Appeals Board'' means the Board defined in regulation 33;

''body governed by public law'' means any body

(a)

established for the specific purpose of meeting

needs in the general interest, not having an industrial or

commercial character; and

(b)

having legal personality; and

(c)

financed, for the most part, by the State, or regional

or local authorities, or other bodies governed by public law; or

subject to management supervision by those bodies, or having

an administrative, managerial or supervisory board, more than

half of whose members are appointed by the State, regional or

local authorities or by other bodies governed by public law;

''call for tenders'' means a contest for the award of a public

contract made pursuant to a formal notice or an EU notice;

''candidate'' means an economic operator who has sought an

invitation to take part in a restricted or negotiated procedure or a

competitive dialogue;

"central purchasing body" means the Department of Contracts;

"central government authorities" means the authorities listed in

Schedule 4;

''the Commission'' means the Commission of the European

Union;

"common procurement vocabulary" or "CPV" designates the

reference nomenclature applicable to public contracts. In the event of

varying interpretations owing to possible differences between CPV

and NACE nomenclatures or between CPV and CPC (provisional

version) nomenclatures the NACE or the CPC nomenclature

respectively shall take precedence;

"competitive dialogue" means a procedure in which any

economic operator may request to participate and whereby the

contracting authority conducts a dialogue with the candidates

admitted to that procedure, with the aim of developing one or more

suitable alternatives capable of meeting its requirements, and on the

basis of which the candidates chosen are invited to tender. For the

purpose of recourse to the procedure, a public contract is considered

to be "particularly complex" where the contracting authorities are not

objectively able to define the technical means in accordance with

regulation 45(2)(b), (c) or (d), capable of satisfying their needs or

objectives, and, or they are not objectively able to specify the legal

and, or financial make-up of a project;

''concessionaire'' means a person entrusted with a public works

concession;

''contracting authority'' means the State, regional or local

authorities, bodies governed by public law, associations formed by

one or several of such authorities or bodies governed by public law;

''contract notice'' means a notice to be published in the Official

Journal of the European Union and in the Gazette;

"contractor" means a natural or legal person or public entity or

group of such persons and, or bodies which offers on the market the

execution of works and, or a work;

''Contracts Committees'' means the General

Contracts

Committee and, or the Special Contracts Committee;

''Departmental Adjudication Boards'' means boards or

committees appointed by contracting authorities with the purpose of

evaluating tenders received and for making recommendations

thereon;

''departmental tender'' means tenders issued by contracting

authorities pursuant to Part II;

''design contest'' means those procedures which enable the

contracting authority to acquire, mainly in the fields of area planning,

architecture and civil engineering, or data processing, a plan or design

selected by a body after being put out to competition with or without

the award of prizes;

''direct contracts'' means contracts awarded without recourse to a

prior call for competition;

"dynamic purchasing system" means a completely electronic

process for making commonly used purchases, the characteristic of

which, as generally available on the market, meet the requirements of

the Contracting Authority, which is limited in duration and open

throughout its validity to any economic operator which satisfies the

selection criteria and has submitted an indicative tender that complies

with the specification;

''Director'' means the Head of the Department of Contracts;

"economic operator" shall cover equally the concepts of

contractor, supplier and service provider;

"electronic auction" means a repetitive process involving an

electronic device for the presentation of new prices, revised

downwards, and, or new values concerning certain elements of

tenders, which occurs after an initial full evaluation of the tenders,

enabling them to be ranked using automatic evaluation methods.

Certain service contracts and certain works contracts having as their

subject-matter intellectual performances, such as the design of works,

may not be the object of electronic auctions;

"electronic means" means using electronic equipment for the

processing (including digital compression) and storage of data which

is transmitted, conveyed and received by wire, by radio, by optical

means or by other electromagnetic means;

''framework agreement'' means an agreement between one or

more contracting authorities and one or more economic operators, the

purpose of which is to establish the terms, in particular with regard to

the prices and, where appropriate, the quantity envisaged, governing

the contracts to be awarded during a given period;

''General Contracts Committee'' means the committee defined in

regulation 8;

''Member State'' means a member state of the European

Communities as described in the term ''Commission'' herein;

''the Minister'' means the Minister responsible for finance;

''negotiated procedures'' means those procedures whereby

contracting authorities consult the economic operators of their choice

and negotiate the terms of a contract with one or more of these;

''non-compliant tender'' means a tender which does not conform

to the terms and conditions specified in the notice or EU notice to

tender or in the tender documents themselves;

''notice'' means a notice published in the Gazette;

''open procedures'' means those procedures whereby any

interested economic operator may submit a tender;

''periodic indicative notice'' means the EU prior information

notice referred to in regulation 48;

''public contract'' means any contract for pecuniary interest

concluded in writing between one or more economic operators and

one or more contracting authorities and having as their object the

execution of works, the supply of products or the provision of

services as defined in this regulation;

''Public Procurement Regulations'' means the Public

Procurement of Entities operating in Water, Energy, Transport, Postal

Services Sector, 2005;

''public service concession contract'' means a public services

contract except for the fact that the consideration for the services to

be provided consists either solely of the right to exploit the service or

in this right together with payment;

''public services contract'' means a public contract other than a

public works or supply contract having as their object the provision of

services referred to in Schedules 6 and 7. A public contract having as

its object both products and services within the scope of Schedules 6

and 7 shall be considered to be a public service contract if the value of

the services in question exceeds that of the products covered by the

contract. A public contract having as its object services within the

meaning of Schedules 6 and 7 and including activities within the

meaning of Schedule 5 that are only incidental to the principal object

of the contract shall be considered to be a public services contract;

''public supply contract'' means a public contract other than a

public works contract having as its object the purchase, lease, rental

or hire purchase, with or without option to buy, of products. A public

contract having as its object the supply of products and which also

covers, as an incidental matter, siting and installation, shall be

considered to be a public supply contract;

''public undertaking'' means any undertaking over which the

contracting authority may exercise directly or indirectly a dominant

influence by virtue of their ownership of it, their financial

participation therein, or the rules which govern it. A dominant

influence on the part of the contracting authority shall be presumed

when these authorities, directly or indirectly, in relation to an

undertaking -

(a)

hold the majority of the undertakings subscribed

capital, or

(b) control the majority of the votes attaching to shares

issued by the undertaking, or

(c)

can appoint more than half of the members of the

undertakings administrative, managerial or supervisory body.

''public works concession'' means a public works contract,

except for the fact that the consideration for the works to be carried

out consists either solely in the right to exploit the construction, or in

this right together with payment;

''public works contract'' means a public contract which has as its

object either the execution, or both the execution and the design, of

works related to one of the activities referred to in Schedule 5, or a

work, as defined in this regulation, or the realisation, by whatever

means, of a work corresponding to the requirements specified by the

contracting authority;

''relevant state'' means a state with which the European Union

has entered into an agreement on public procurement including in

particular the Agreement on the European Economic Area, Europe

Agreements, bilateral agreements and, where it applies, the

Government Procurement Agreement of the World Trade

Organisation;

''restricted procedures'' means those procedures in which any

economic operator may request to participate and whereby only those

economic operators invited by the contracting authorities may submit

a tender;

"service provider" means a natural or legal person or public

entity or group of such persons and, or bodies which offers on the

market services;

''Special Contracts Committee'' means the committee defined in

regulation 9;

"supplier" means a natural or legal person or public entity or

group of such persons and, or bodies which offers on the market

products;

''technical specifications'' has the meaning assigned to it

pursuant to regulation 45;

''tenderer'' means an economic operator who has submitted a

tender;

''third country'' means a state not being a member of the

European Union;

''thresholds'' means the amounts listed in Schedule 8 and

determined in accordance with regulation 11;

"VAT" means value added tax under the Value Added Tax Act;

''work'' means the outcome of building or civil engineering

works taken as a whole which is sufficient of itself to fulfil an

economic and technical function;

''working days'' means days when work is effected in Malta;

"written" or "in writing" means any expression consisting of

words or figures which can be read, reproduced and subsequently

communicated. It may include information which is transmitted and

stored by electronic means.

List of Contracting Authorities who shall administer their own public

procurement in accordance with the provisions of these Regulations

MINISTRY OF JUSTICE

LOCAL COUNCILS

AND HOME AFFAIRS

MINISTRY FOR

MGI / MIMCOL

INFORMATION

MALTAPOST PLC

TECHNOLOGY AND

INVESTMENTS

These regulations shall provide for the regulation of public Scope.

contracts awarded by contracting authorities listed in Schedule 1 and

categorised in Schedule 2 and Schedule 3.

List of Central Government Authorities

OFFICE OF THE PRIME

Permanent Secretary’s Office / Department of

MINISTER

Corporate Services

Internal Audit and Investigations Directorate

Planning and Priorities Co-ordination

Directorate

Armed Forces of Malta

Information

Government Printing Press

Electoral Office

Public Service Commission

MALTA COUNCIL FOR ECONOMIC AND

SOCIAL DEVELOPMENT

BROADCASTING AUTHORITY

MINISTRY OF FINANCE

Permanent Secretary’s Office / Department of

Corporate Services

Treasury Department

Inland Revenue Department

Capital Transfer Duty

Customs Department

VAT Division

Lotteries Department

Contracts Department

Economic Policy Division

LOTTERIES AND GAMING AUTHORITY

MALTA STATISTICS AUTHORITY

TAX COMPLIANCE UNIT

MINISTRY FOR JUSTICE

Permanent Secretary’s Office / Director

AND HOME AFFAIRS

Corporate Services

Citizen and Expatriate Affairs

Notary to Government

Police Department

Civil Protection

Correctional Services

Government Property Division

Joint Office

Land Registry

Public Registry

Civil Registration

Attorney General

Judicial

Local Councils Department

MINISTRY OF EDUCATION, Permanent Secretary’s Office / Department of

YOUTH AND

Corporate Services

EMPLOYMENT

Education Division / Department of Finance and

Administration

Libraries and Archives

Examinations

Industrial and Employment Relations

JUNIOR COLLEGE

MALTA COLLEGE OF ARTS, SCIENCE AND

TECHNOLOGY

UNIVERSITY OF MALTA

FOUNDATION FOR TOMORROW’S

SCHOOLS

FOUNDATION FOR EDUCATIONAL

SERVICES

MALTA COUNCIL FOR SCIENCE &

TECHNOLOGY

EMPLOYMENT AND TRAINING

CORPORATION

OCCUPATIONAL HEALTH AND SAFETY

AUTHORITY

KUNSILL MALTI GHALL-ISPORTS

COOPERATIVES BOARD

NATIONAL POOL TAL-QROQQ

MINISTRY FOR TOURISM Permanent Secretary / Department of Corporate

AND CULTURE

Services

MALTA TOURISM AUTHORITY

HERITAGE MALTA

NATIONAL COUNCIL FOR CULTURE AND

THE ARTS

CENTRE

NATIONAL ORCHESTRA

MANOEL THEATRE

MALTA CENTRE FOR RESTORATION

HERITAGE

FONDAZZJONI PATRIMONJU MALTI

F O R Permanent Secretary’s Office / Department of

COMPETITIVENESS AND Corporate Services

COMMUNICATIONS

Civil Aviation

Commerce Division

Consumer and Competitive Division

MALTA COMMUNICATIONS AUTHORITY

MALTA STANDARDS AUTHORITY

MINISTRY FOR RESOURCES Permanent Secretary’s Office / Department of

AND INFRASTRUCTURE

Corporate Services

Works Division / Finance and Administration

Operating Units

Construction and Maintenance

Manufacturing and Services

Building and Engineering

Building Construction Industry Department

Cleaning Department

Oil Exploration

MALTA RESOURCES AUTHORITY

BUILDING INDUSTRY CONSULTATIVE

COUNCIL

MINISTRY FOR GOZO

Permanent Secretary’s Office / Department of

Corporate Services

Customer Services

Projects and Development

M I N I S T RY O F H E A LT H , Permanent Secretary’s Office / Department of

THE

A N D Corporate Services

COMMUNITY CARE

Health Division / Finance and Administration

Elderly and Community Care

FOUNDATION FOR MEDICAL SERVICES

ZAMMIT CLAPP HOSPITAL

MATER DEI HOSPITAL

MOUNT CARMEL HOSPITAL

AUTHORITY

F O R Permanent Secretary’s Office / Department of

Corporate Services

TECHNOLOGY

A N D MALTA NATIONAL LABORATORY

INVESTMENTS

MGI

PROMOTION

DATA PROTECTION COMMISSION

INDUSTRIAL PROJECTS AND SERVICES

LTD.

PRIVATISATION UNIT

COLLECTIVE BARGAINING UNIT

MALTA ENTERPRISE

M I N I S T RY F O R R U R A L Permanent Secretary’s Office / Department of

AND

T H E Corporate Services

ENVIRONMENT

Agriculture Services and Rural Development

Food and Veterinary Services

Fisheries and Conservation Control

Environment

MALTA ENVIRONMENT AND PLANNING

AUTHORITY

WASTE SERVICES LTD.

M I N I S T RY F O R U R B A N Permanent Secretary Office / Department of

DEVELOPMENT

A N D Corporate Services

ROADS

MALTA TRANSPORT AUTHORITY

M I N I S T RY F O R T H E Permanent Secretary’s Office / Department of

FA M I LY A N D S O C I A L Corporate Services

SOLIDARITY

Social Security

Family Welfare

Social Housing

HOUSING AUTHORITY

FOUNDATION FOR SOCIAL WELFARE

SERVICES

SEDQA

APPO{{

NATIONAL COMMISSION FOR DISABLED

PERSONS

SAPPORT

M I N I S T RY O F F O R E I G N Permanent Secretary’s Office / Department of

AFFAIRS

Corporate Services

INTERNATIONAL INSTITUTE ON AGEING

(1) Contracting authorities shall ensure that there is no Non-

discrimination between economic operators, and that all economic discrimination

and

operators are treated equally and transparently in all calls for tenders confidentiality.

whatever their estimated value.

(2) Contracting authorities shall ensure that there is no

discrimination between undertakings claiming injury in the context of

a procedure for the award of a contract as a result of the distinction

made by this regulation between national rules implementing

Community law and other national rules.

(3) The provision of regulation 34(2) shall apply to all

contracting authorities irrespective of the value of the contract.

(4) Contracting authorities shall respect fully the confidential

nature of any information furnished by economic operators. Such

information includes in particular, technical or trade secrets and the

confidential aspects of tenders

Provided that this shall be without prejudice to the

provisions in this regulation concerning the obligations to the

advertising of awarded contracts and the information supplied to

candidates and tenderers in terms of this regulation and of law.

(5) In the context of provision of technical specifications to

interested candidates and tenderers, of qualification of candidates and

selection of tenderers and of award of contracts, contracting

authorities may impose requirements with a view to protecting the

confidential nature of information which they make available.

Public Works Contracts Activities

1. General building and civil engineering work (without any particular

specification) and demolition work

2. General building and civil engineering work (without any particular

specification)

3. Demolition work

4. Construction of flats, office blocks, hospitals and other buildings, both

residential and non-residential

5. General Building Contractors

6. Roofing

7. Construction of chimneys, kilns and furnaces

8. Waterproofing and damp-proofing

9. Restoration and maintenance of outside walls, repainting, cleaning, etc.

10. Erection and dismantlement of scaffolding

11. Other specialised activities relating to construction work (including carpentry)

12. Civil engineering: construction of roads, bridges, etc.

13. General civil engineering works

14. Earth-moving (navyying)

15. Construction of bridges, tunnels and shafts, drilling

16. Hydraulic engineering, harbours

17. Road building including specialised construction of airports and runways

18. Specialised construction work relating to water (i.e. to irrigation, land

drainage, water supply, sewage disposal, sewerage, etc.)

19. Specialised activities in other areas of civil engineering

20. Installation (fittings and fixtures)

21. General installation work

22. Gas fitting and plumbing, and the installation of sanitary equipment

23. Installation of heating and ventilating apparatus (central heating, air

conditioning, ventilation)

24. Sound and heat insulation, insulation against vibration

25. Electrical fittings

26. Installation of aerials, lightning conductors, telephones, etc.

27. Building completion work

28. General building completion work

29. Plastering

30. Joinery, primarily engaged in on the site assembly and/or installation

(including the laying of parquet flooring)

31. Painting, glazing, paper hanging

32. Tiling and otherwise covering floors and walls

33. Other building completion work (putting in fireplaces).

(1) There shall be a Director of Contracts who shall be Director of

responsible for the running of the Department of Contracts and Contracts.

generally for the administration of the procurement procedures as laid

down in these regulations.

(2) Unless otherwise provided for in these regulations, it shall

be the function of the Director of Contracts -

(a)

to establish and, or to approve the general conditions

of tender documents;

(b) to authorise deviations from standard conditions in

accordance with the regulations set out herein and which may

be included in tender documents;

(c)

to ensure that tender conditions and specifications

do not give an undue advantage or disadvantage to any

particular tenderer and any person having or having had an

interest in obtaining a particular public contract;

(d) to order that a tendering period of any call for

tenders referred to in these regulations be extended if he

considers such an extension justified by the circumstances of

the case;

(e)

to vet and approve, with or without modification,

tender documents before the same are issued and published;

(f)

to ensure that these regulations are observed by all

parties involved;

(g) to establish and regulate the procedure to be

followed during meetings of the Contracts Committee and

Departmental Adjudication Boards, and during the issue and

publication of calls for tenders, receipt of offers, opening of

bids, adjudication of tenders and award of contracts in

accordance with the rules herein set out;

(h) to obtain information from the authorities listed in

Schedule 1 to which these regulations apply on the award of

contracts whose value is less than Lm 20,000 including but not

limited to variation orders, penalties, imposed or remitted, and

generally as he may deem necessary in order to enable him to

ensure conformity with these regulations;

(i)

to approve, where appropriate, as provided in Part

VIII, variations which affect the original values of contracts by

more than 5 per cent;

(j)

to approve extensions in the duration of contracts

awarded by him if he considers that circumstances so warrant in

the public interest;

(k) to identify and implement appropriate means to

enable him to monitor the proper execution of contracts

awarded by him and, on the advice of the General Contracts

Committee, to impose or remit, as appropriate, penalties and

damages due on such contracts;

(l)

to institute and to defend any judicial or arbitral

proceedings that may be necessary in relation to any contract

awarded by him;

(m) (i) to issue calls for tenders and to award period

contracts for the provision of equipment, stores, works or

services which are of a common use nature for contracting

authorities listed under Schedule 2; and

(ii) to periodically notify Heads of Departments of

the prices and conditions applicable for, and the procedure to be

followed in, the procurement of such equipment, stores, works

or services

Provided that Heads of Departments shall obtain

such equipment, stores, works or services directly from the

contractor in accordance with such conditions and procedures

notified by the Director as provided herein;

(n) to make regulations to award tenders in the name

and on behalf of the Government of Malta in relation to

contracting authorities listed in Schedule 2

Provided that the authorities listed in Schedule 2

shall -

(i)

draw up the tender documents;

(ii) effect payment of the awarded tender; and

(iii) shall monitor the implementation of the

tender;

(o) to publish in the Gazette a notice of all awards of

tenders including variations outside the limit of the tender

conditions, within six months of their award.

Services within the meaning of regulation 56(1)

CPA Reference Subject

CPC

No

Reference No

1. Maintenance and Repair Services

17.40.90

Repair services of tarpaulins and camping

88690.1

equipment

17.52.90

Repair services of nets and ropework

88690.2

28.21.90

Repair and maintenance services of tanks,

88610.1

reservoirsand containers of metal

28.22.90

Repair and maintenance services of central

88610.2

heating boilers

28.30.91

Installation services of steam generators,

88610.3

except central heating hot water boilers,

including related pipe system

28.30.92

Repair and maintenance services of steam

88610.4

generators, except central heating hot water

boilers

29.11.91

Installation services of engines and

88620.1

turbines, except aircraft, vehicle and cycle

engines

29.11.92

Repair and maintenance services of

88620.2

engines and turbines, except aircraft,

vehicle and cycle engines

29.12.91

Installation services of pumps and

88620.3

compressors

29.12.92

Repair and maintenance services of pumps

88620.4

and compressors

29.13.90

Repair and maintenance services of taps

88620.5

and valves

29.21.91

Installation services of furnaces and

88620.6

furnace burners

29.22.91

Installation services of lifting and handling

88620.8

equipment, except of lifts and escalators

29.21.92

Repair and maintenance services of

88620.7

furnaces and furnace burners

29.22.92

Repair and maintenance services of lifting

88620.9a

and handling equipment

29.23.91

Installation services of non-domestic

88620.9b

cooling and ventilation equipment

29.23.92

Repair and maintenance services of non-

88620.9c

domestic

cooling

and

ventilation

equipment

CPA Reference Subject

CPC

Reference No

Installation services of other general 88620.9d

purpose machinery n.e.c.

Repair and maintenance services of other 88620.9e

general purpose machinery n.e.c.

Installation services of agricultural and 88620.9f

forestry machinery

Repair and maintenance services of 88620.9g

agricultural and forestry machinery

Installation services of machine-tools

88620.9h

Repair and maintenance services of 88620.9i

machine-tools

Installation services of machinery for 88620.9j

metallurgy

Repair and maintenance services of 88620.9k

machinery for metallurgy

Installation services of machinery for 88620.9l

mining, quarrying and construction

Repair and maintenance services of 88620.9m

machinery for mining, quarrying and

construction

Installation services of machinery for food, 88620.9n

beverage and tobacco processing

Repair and maintenance services of 88620.9o

machinery for food, beverage and tobacco

processing

Installation services of machinery for 88620.9p

textile, apparel and leather production

Repair and maintenance services of 88620.9q

machinery for textile, apparel and leather

production

Installation services of machinery for 88620.9r

paper and paperboard production

Repair and maintenance services of 88620.9s

machinery for paper and paperboard

production

Installation services of other special 88620.9t

purpose machinery n.e.c

Repair and maintenance services of other 88620.9u

special purpose machinery n.e.c.

Installation services of weapons and 88620.9v

weapons systems

Repair and maintenance services of 88620.9w

weapons and weapons systems

CPA Reference Subject

CPC

Reference No

Installation services of office machinery

88630.1

Installation services of computers and 88630.2

other information processing equipment

Installation services of electric motors, 88640.1

generators and transformers

Repair, maintenance and rewinding 88640.2

services of electric motors, generators and

transformers

Installation

services

of

electricity 88640.3

distribution and control apparatus

Repair and maintenance services of 88640.4

electricity

distribution

and

control

apparatus

Installation services of other electrical 88640.5

equipment

n.e.c.,

except

electrical

signalling equipment for motorways, roads

and airports

Repair and maintenance services of other 88640.6

electrical equipment n.e.c.

Installation services of television and radio 88650.1

transmitters

Repair and maintenance services of 88650.2

television and radio transmitters

Installation services of professional radio, 88650.3

television, sound and video equipment

Repair and maintenance services of 88650.4

professional radio, television, sound and

video equipment

Installation services of medical and 88660.1

surgical equipment and apparatus

Repair and maintenance services of 88660.2

medical and surgical equipment and

apparatus

Installation services of instruments and 88660.3

apparatus for measuring, checking, testing,

navigating and other purposes

Repair and maintenance services of 88660.4

instruments and apparatus for measuring,

checking, t e s t i n g, navigating

Repair and maintenance services of 88660.5

professional

photographic,

cinematographic and optical instruments

CPA Reference Subject

CPC

Reference No

Installation services of industrial time 88660.6

measure instruments and apparatus

Repair and maintenance services of 88660.7

industrial time measure instruments and

apparatus

Repair and maintenance services of ships 88680.1

and floating, platforms and structures

Reconditioning of ships

88680.2

Demolition of ships

88680.3

Repair and maintenance services of 88680.4

pleasure and sporting boats

Repair and maintenance services of 88680.5

railway and tramway locomotives and

rolling stock

Reconditioning of railway and tramway 88680.6

locomotives and rolling stock

Repair and maintenance services of aircraft 88680.7

and aircraft engines

Reconditioning of aircraft

88680.8

Repair and maintenance services of 88690.3

musical instruments

Maintenance and repair services of motor 611d

vehicles

611e

611f

Maintenance and repair services

of 61220

motorcycles

Repair services of personal and household 633a 633b

goods

633c 633d

(1)

2. Land transportation services,

including armoured car services and

courier services, except transport of mail

Urban and suburban regular passenger 712a

transportation, other than by railways

Inter-urban passenger transportation, other 712b

than by railways

Other

scheduled

passenger

land 712c

transportation

Taxi services and rental services of 712d

passenger cars with operator

Other land passenger transportation 712e

services

CPA Reference Subject

CPC

Reference No

Freight transportation services by road, 712f

specialized vehicles

Transportation of other freight

71239.3

Rental services of commercial freight

vehicles with operator

712h

Courier services other than national post 751b

services

Armoured car services

87304

3. Air transport services of passengers

and freight, except transport of mail

Scheduled

passenger

transportation 73110

services by air

Transportation of containerized freight, 73220.1

scheduled

Transportation of other freight by air, 73290.1

scheduled

Non-scheduled passenger transportation 73120

services by air

Non-scheduled

freight

transportation 73210.1

services by air

73290.2

Rental services of aircrafts with crew

73400

Space transportation services

73300

4. Transport of mail by land and air

Mail transportation

71235

Mail transportation by air, scheduled

73210.1

Non-scheduled

freight

transportation 73210.1

services by air

73290.2

5. Telecommunications services (2)

Data and message transmitting services

752a

Other telecommunications services

752b

6. Financial services

(a) insurance services

(b) banking and investment services (3)

Insurance and pension funding services, 812a

except compulsory social security services

812b

812c

CPA Reference Subject

CPC

No

Reference No

67.2

Services auxiliary to insurance and pension 814

funding

Financial intermediation services, except 811a 811d

insurance and pension funding services

811b 811e

811c

67.1

Services

auxiliary

to

financial 813a

intermediation, except to insurance and

813b

pension funding

813c

7. Computer and related services

72.10.10

Hardware consultancy services

84100

72.20.2

Programming services of packaged

841b

software products

72.20.3

Software consultancy and other supply

842a

services

72.3

Data processing services

842b

72.4

Database services

72.5

Maintenance and repair services of office, 845

accounting and computing machinery

72.6

Other computer-related services

(4)

8. Research & Development services

Research and development services

9. Accounting, auditing and book-

keeping services

74.12.1

Accounting and auditing services

862a

74.12.2

Book-keeping services, except tax returns

862b

10. Market research and public opinion

polling services

74.13

Market research and public opinion polling

services

11. Management consultant services (5)

and related services

74.14

Business and management consultancy

865, 866a

services

74.15

Management holdings services

866b

CPA Reference Subject

CPC

No

Reference No

12. Architectural services; engineering

services and integrated engineering

services; urban planning and landscape

architectural services; related scientific

and technical consulting services;

technical testing and analysis services

74.20.2

Architectural services

867a

74.20.3

Engineering services

867b

74.20.4

Integrated engineering services for turnkey

867c

projects

74.20.5

Urban planning and landscape architectural

867d

services

74.20.6

Project management services related to

- -

construction and civil engineering works

74.20.7

Engineering- related scientific and

867e

technical consulting services

74.3

Technical testing and analysis services

867f

13. Advertising Services

74.4

Advertising services

14. Building-cleaning services and

property management services

70.3

Real estate agency services on a fee or

822a

contract basis

822b

74.7

Industrial cleaning services

15. Publishing and printing services on a

fee or contract basis

22.21

Newspaper printing services

884h

22.22.3

Printing services, other than printing of

884i

newspaper

22.23

Bookbinding and finishing services

884j

22.24.1

Composition and plate-making services

884k

22.25

Other services related to printing

884l

22.3

Reproduction services of recorded media

884m

884n

884o

16. Sewage and refuse disposal services;

sanitation and similar services

CPA Reference Subject

CPC

Reference No

Sewage and Refuse disposal services, 940a

sanitation and similar services

940b

940c

(1)

Except for rail transport services covered by Category 18.

(2)

Except voice telephony, telex, radiotelephony, paging and satellite services.

(3)

Except contracts for financial services in connection with the issue, sale,

purchase or transfer of securities or other financial instruments, and central

bank services.

(4)

Except research and development service contracts other than those where the

benefits accrue exclusively to the contracting authority for its use in the

conduct of its own affairs on condition that the service provided is wholly

remunerated by the contracting authority.

(5)

Except arbitration and conciliation services.

(1) The Department of Contracts shall be responsible Remedies -

for the provision of pre-contractual remedies to candidates and competence

the Department

tenderers and any person having or having had an interest in of Contracts.

obtaining a particular public contract in relation to all public contracts

whatever their value. Such remedies shall be provided by the Director

of Contracts or by any other official within the Department of

Contracts duly authorised by the Director.

(2) In terms of this regulation the Director shall

(a)

take, at the earliest opportunity, interim measures

with the aim of correcting an alleged infringement or preventing

further damage to the interests concerned, including measures to

suspend or to ensure the suspension of the procedure for the

award of a public contract or the implementation of any

decision taken by the contracting authority

Provided that in the exercise of these powers the

Director may take into account the probable consequences of

the measures for all interests likely to be harmed, as well as the

public interest, and may decide not to grant such measures

where their negative consequences could exceed their benefits

Provided further that a decision not to grant interim

measures shall not prejudice any other claim of the person

seeking these measures;

(b) either set aside or ensure the setting aside of

decisions taken unlawfully, including the removal of

discriminatory technical, economic or financial specifications in

the invitation to tender, the contract documents or in any other

document relating to the contract award procedure;

(c)

take at the earliest opportunity, measures other than

those provided for in paragraphs (a) and (b) with the aim of

correcting any identified infringement and preventing injury to

the interests concerned and to report to the Minister on cases

where a contracting authority fails to correct any infringement

in response to his instructions;

(d) in the event of a cancellation of a call for tenders the

Director shall have the authority to order a refund of the cost

incurred by any tenderer and any person having or having had

an interest in obtaining a particular public contract in acquiring

a copy of the tender documents or, if the tender is to be re-

issued, to ensure that such a tenderer and any person having or

having had an interest in obtaining a particular public contract

obtains the new tender document free of charge.

(3) The decisions of the Director in terms of subregulation (2)

shall be rendered in writing in the Gazette and shall indicate the

reasons upon which such decision was taken.

(4) Any interested person who feels aggrieved by a decision

taken by the Director of Contracts in terms of this regulation may, on

a point of law, appeal to the Court of Appeal (Inferior Jurisdiction) as

constituted in accordance with article 41(6) of the Code of Cap.12.

Organization and Civil Procedure by means of an application filed in

the registry of that court within thirty working days from the date on

which that decision has been made public.

Services within the meaning of regulation 56(2)

17. Hotel and restaurant services

Hotel and restaurant services

18. Rail transport services

60.1

Railway transportation services

711a

711b

711c

60.21.1

Urban and suburban passenger railway

711d

transportation

19. Water transport services

Water transport services

20. Supporting and auxiliary transport

services

Supporting and auxiliary transport services;

travel agency services

21. Legal Services

74.11

Legal services

22. Personnel placement and supply services

74.5

Labour recruitment and provision of personnel

services

23. Investigation and security services except

armoured car services

74.60.11

Investigation services

87301

74.60.12

Security consultation services

87302

74.60.13

Alarm monitoring services

87303

74.60.15

Guard services

87305

74.60.16

Other security services

87309

24. Education and vocational education

services

Education services

25. Health and social services

Health and social work services

26. Recreational, cultural and sporting

services

(1) Without prejudice to the provisions of the Discretion to

Interpretation Act and to any order or direction given by the refer.

Minister -

(a)

the Director may, at his discretion, accept or reject

the recommendations of the majority of the members of the

General Contracts Committee for the acceptance or rejection of

any tender;

(b)

where -

(i) the

Director

disagrees

with

any

recommendation of the majority of the members of the

General Contracts Committee; or

(ii) any recommendation of the General Contracts

Committee differs from that submitted by the Department

or other body for whom the procurement is to be made,

the Director may refer the matter for the decision of the

Minister

Provided that the Director shall always refer any matter in

which he disagrees with the majority of the members of a

Special Contracts Committee for the decision of the Minister;

(c)

the Director may, at his discretion, refer any matter

for the decision of the Minister provided that any decision taken

by the Minister under the Interpretation Act or after any referral Cap. 249.

to him by the Director and which has a direct influence on the

award of any contract by the Director to any particular tenderer

shall not deprive in any way the right of any candidate or

tenderer and any person having or having had an interest in

obtaining a particular public contract to have recourse to the

appeals procedures provided for in these regulations.

(2) Any matter referred for the decision of the Minister shall

be so referred in writing and the decision of the Minister shall

likewise be communicated in writing.

Values of thresholds pursuant to regulation 11

1. The values of the thresholds applicable to Public Contracts are as

follows net of Value Added Tax

(a)

Lm63,000 for public supply and service contracts other than

those covered by point (b) third indent; awarded by contracting

authorities which are listed as central government authorities in

Schedule 4 (Central Government Authorities); in the case of

public supply contracts awarded by contracting authorities

operating in the filed of Defence, this shall apply only to

contracts involving products covered by Schedule 10;

(b)

Lm97,000

For public supply and service contracts awarded by contracting

authorities other than those listed in Schedule 4 (Central

Government Authorities);

For public supply contracts awarded by contracting authorities

which are listed in Schedule 4 (Central Government Authorities)

and operate in the field of defence, where these contracts involve

products not listed in Schedule 10;

For public service contracts awarded by any contracting authority

in respect of the services listed in Category 8 of Schedule 6,

Category 5 telecommunication services CPC reference 7524,

7525 and 7526 and, or the services listed in Schedule 7.

(c)

Lm2,448,000 for public works contracts.

(1) There shall be a General Contracts Committee

whose members shall be appointed by the Prime Minister on such

terms and conditions as may be specified in their letter of

appointment.

(2) The members of the General Contracts Committee shall be

appointed for a fixed term of not more than three years, and may be

re-appointed.

(3) Any member of the General Contracts Committee may

during his tenure of office be removed by the Prime Minister where

he is satisfied that there has been a clear case of misbehaviour by the

member or inability of a member to perform his functions or where

such circumstances exist that would disqualify such a member from

remaining a member of the Contracts Committee.

(4) The provisions of Part IX shall apply to the General

Contracts Committee.

Public Contract Notices

ANNEX I A

INFORMATION WHICH MUST BE INCLUDED IN PUBLIC CONTRACT

NOTICES

NOTICE OF THE PUBLICATION OF A PRIOR INFORMATION NOTICE ON

A BUYER PROFILE

1. Country of the contracting authority

2. Name of the contracting authority

3. Internet address of the "buyer profile" (URL)

4. CPV Nomenclature reference No(s)

PRIOR INFORMATION NOTICE

1. The name, address, fax number and email address of the contracting

authority and, if different, of the service from which additional

information may be obtained and, in the case of services and works

contracts, of the services, e.g. the relevant governmental internet site,

from which information can be obtained concerning the general

regulatory framework for taxes, environmental protection, employment

protection and working conditions applicable in the place where the

contract is to be performed.

2. Where appropriate, indicate whether the public contract is restricted to

sheltered workshops, or whether its execution is restricted to the

framework of protected job programmes.

3. In the case of public works contracts: the nature and extent of the works

and the place of execution; if the work is to be subdivided into several

lots, the essential characteristics of those lots by reference to the work;

if available, an estimate of the range of the cost of the proposed works;

Nomenclature reference No(s).

In the case of public supply contracts: the nature and quantity or value

of the products to be supplied, Nomenclature reference No(s).

In the case of public services contracts: the total value of the proposed

purchases in each of the service categories in Annex II A;

Nomenclature reference No(s).

4. Estimated date for initiating the award procedures in respect of the

contract or contracts, in the case of public service contracts by category.

5. Where appropriate, indicate whether a framework agreement is

involved.

6. Where appropriate, other information.

7. Date of dispatch of the notice or of dispatch of the notice of the

publication of the prior information notice on the buyer profile.

8. Indicate whether the contract is covered by the Agreement.

CONTRACT NOTICES

Open and restricted procedures, competitive dialogues,

procedures, negotiated procedures

1. Name, address, telephone and fax number, email address of the

contracting authority.

2. Where appropriate, indicate whether the public contract is restricted to

sheltered workshops, or whether its execution is restricted to the

framework of protected job programmes.

3. (a)

The award procedure chosen;

(b)

Where appropriate, the reasons for use of the accelerated

procedure (in restricted and negotiated procedures);

(c)

Where appropriate, indicate whether a framework agreement is

involved;

(d)

Where appropriate, indicate whether a dynamic purchasing

system is involved;

(e)

Where appropriate, the holding of an electronic auction (in the

event of open, restricted or negotiated procedures, in the situation

covered by regulations 58(1)(a), 65(1)(a) and 71(1)(a)

4. Form of the contract.

5. Place of execution/performance of the works, for delivery of products

or of the provision of services.

6. (a)

Public works contracts

-

nature and extent of the works and general nature of the

work. Indication in particular of options concerning

supplementary works, and, if known, the provisional

timetable for recourse to these options as well as the

number of possible renewals, if any. If the work or the

contract is subdivided into several lots, the size of the

different lots; Nomenclature reference number(s),

information concerning the purpose of the work or the

contract where the latter also involves the drawing up of

projects,

in the event of a framework agreement, indication also of

the planned duration of the framework agreement, the

estimated total value of the works for the entire duration of

the framework agreement and, as far as possible, the value

and the frequency of the contracts to be awarded.

(b)

Public supply contracts

nature of the products to be supplied, indicating in

particular whether tenders are requested with a view to

purchase, lease rental, hire or hire purchase or a

combination of these, nomenclature reference number.

Quantity of products to be supplied, indicating in particular

options concerning supplementary purchases and, if

known, the provisional timetable for recourse to these

options as well as the number of renewals, if any.

Nomenclature reference number(s),

in the case of regular or renewable contracts during the

course of a given period, indicate also, if known, the

timetable for subsequent contracts for purchase of intended

supplies,

in the event of a framework agreement, indication also of

the planned duration of the framework agreement, the

estimated total value of the supplies for the entire duration

of the framework agreement and, as far as possible, the

value and the frequency of the contracts to be awarded.

(c)

Public service contracts

category and description of service. Nomenclature

reference number(s). Quantity of services to be provided.

Indicate in particular options concerning supplementary

purchases and, if known, the provisional timetable for

recourse to these options as well as the number of

renewals, if any. In the case of renewable contracts over a

given period, an estimate of the time frame, if known, for

subsequent public contracts for purchase of intended

services, in the event of a framework agreement, indication

also of the planned duration of the framework agreement,

the estimated total value of the services for the entire

duration of the framework agreement and, as far as

possible, the value and the frequency of the contracts to be

awarded,

indication of whether the execution of the service is

reserved by law, regulation or administrative provision to a

particular profession.

Reference to the law, regulation or administrative provision.

indication of whether legal persons should indicate the

names and professional qualifications of the staff to be

responsible for the execution of the service.

7. If the contracts are subdivided into lots, indication of the possibility of

tendering for one, for several or for all the lots.

8. Any time limit for completion of works/supplies/services or duration of

the works/supply/services contract; where possible any time limit by

which works will begin or any time limit by which delivery of supplies

or services will begin.

9. Admission or prohibition of variants.

10. Where applicable particular conditions to which the performance of the

contract is subject.

11. In the case of open procedures

(a)

name, address, telephone and telefax number and electronic

address of the service from which contract documents and

additional documents can be requested;

(b)

where appropriate, time limit for submission of such requests;

(c)

where appropriate, cost of and payment conditions for obtaining

these documents.

12. (a)

Time limit for receipt of tenders or indicative tenders where a

dynamic purchasing system is being used (open procedures);

(b)

time limit for receipt of request to participate (restricted and

negotiated procedures);

(c)

address where these have to be transmitted;

(d)

the language or languages in which they must be drawn up.

13. In the case of open procedures

(a)

persons authorised to be present at the opening of tenders;

(b)

date, time and place for such opening.

14. Where appropriate any deposit and guarantees required.

15. Main terms concerning financing and payment and, or references to the

texts in which these are contained.

16. Where applicable, the legal form to be taken by the grouping of

economic operators to whom the contract is to be awarded.

17. Selection criteria regarding the personal situation of economic operators

that may lead to their exclusion, and required information proving that

they do not fall within the cases justifying exclusion. Selection criteria

and information concerning the economic operators' personal situation,

information and any necessary formalities for assessment of the

minimum economic and technical standards required of the economic

operator. Minimum level(s) of standards possibly required.

18. Where there is a framework agreement: the number and, where

appropriate, proposed maximum number of economic operators who

will be members of it, the duration of the framework agreement

provided for, stating, if appropriate, the reasons for any duration

exceeding four years.

19. In the case of a competitive dialogue or a negotiated procedure with the

publication of a contract notice, indicate, if appropriate, recourse to a

staged procedure in order gradually to reduce the number of solutions to

be discussed or tenders to be negotiated.

20. In the case of a restricted procedure, a competitive dialogue or a

negotiated procedure with the publication of a contract notice, when

recourse is had to the option of reducing the number of candidates to be

invited to submit tenders, to engage in dialogue or to negotiate

minimum and, if appropriate, proposed maximum number of candidates

and objective criteria to be used to choose that number of candidates.

21. Time frame during which the tenderer must maintain its tender (open

procedures).

22. Where appropriate, names and addresses of economic operators already

selected by the contracting authority (negotiated procedures).

23. Criteria referred to in regulation 27(3), (4) and (5) to be used for award

of the contract: "lowest price" or "most economically advantageous

tender". Criteria representing the most economically advantageous

tender as well as their weighting shall be mentioned where they do not

appear in the specifications or, in the event of a competitive dialogue, in

the descriptive document.

24. Name and address of the body responsible for appeal and, where

appropriate, mediation procedures. Precise information concerning

deadlines for lodging appeals, or if need be the name, address,

telephone number, fax number and email address of the service from

which this information may be obtained.

25. Date(s) of publication of the prior information notice in accordance with

the technical specifications of publication indicated in Schedule 9 II or

statement that no such publication was made.

26. Date of dispatch of the notice.

27. Indicate whether the contract is covered by the Agreement.

SIMPLIFIED CONTRACT NOTICE FOR USE IN A DYNAMIC PURCHASING

SYSTEM

1. Country of contracting authority.

2. Name and e-mail address of contracting authority.

3. Publication reference of the contract notice for the dynamic purchasing

system.

4. E-mail address at which the technical specification and additional

documents relating to the dynamic purchasing system are available.

5. Subject of contract: description by reference number(s) of "CPV"

nomenclature and quantity or extent of the contract to be awarded.

6. Time frame for submitting indicative tenders.

CONTRACT AWARD NOTICES

1. Name and address of the contracting authority.

2. Award procedures chosen. In the case of negotiated procedure without

prior publication of a contract notice (regulation 24), justification.

3. Public works contracts: nature and extent of the contract, general

characteristics of the work.

Public supply contracts: nature and quantity of products supplied, where

appropriate, by the supplier; nomenclature reference number.

Public service contracts: category and description of the service;

nomenclature reference number; quantity of services bought.

4. Date of contract award.

5. Contract award criteria.

6. Number of tenders received.

7. Name and address of the successful economic operators.

8.

9. Value of the tender (tenders) retained or the highest tender and lowest

tender taken into consideration for the contract award.

10. Where appropriate, value and proportion of contract likely to be

subcontracted to third parties.

11. Date of publication of the tender notice in accordance with the technical

specifications for publication in Schedule 9 II.

12. Date of dispatch of the notice.

13. Name and address of the body responsible for appeal and, where

appropriate, mediation procedures. Precise information concerning the

deadline for lodging appeals, or if need be the name, address, telephone

number, fax number and email address of the service from which this

information may be obtained.

ANNEX I B

INFORMATION WHICH MUST APPEAR IN PUBLIC WORKS

CONCESSION NOTICES

1. Name, address, fax number and email address of the contracting

authority

2. (a)

Place of execution

(b)

Subject of the concession; nature and extent of the service

3. (a)

Time limit for the submission of applications

(b)

Address to which they must be sent

(c)

Language(s) in which they must be written

4. Personal, technical and financial conditions to be met by the candidates

5. Criteria which will be applied in the award of the contract

6. If appropriate, the minimum proportion of the works which will be

contracted out

7. Date of dispatch of the notice

8. Name and address of the body responsible for appeal and, where

appropriate, mediation procedures. Precise information concerning the

deadline for lodging appeals, or if need be the name, address, telephone

number, fax number and email address of the service from which this

information may be obtained.

ANNEX I C

INFORMATION WHICH MUST APPEAR IN WORKS CONTRACT

NOTICES OF CONCESSIONNAIRES WHO ARE NOT CONTRACTING

AUTHORITIES

1. (a)

Place of execution

(b)

Nature and extent of the services, general characteristics of the

works

2. Any time limit for completion imposed

3. Name and address of the body from whom the specifications and the

additional documents may be requested

4. (a)

Time limit for the receipt of applications to participate and/or the

receipt of tenders

(b)

Address to which they must be sent

(c)

Language(s) in which they must be written

5. Any deposits or guarantees required

6. Economic and technical conditions to be met by the contractor

7. Criteria which will be applied in the award of the contract

8. Date of dispatch of the notice

ANNEX I D

INFORMATION WHICH MUST APPEAR IN DESIGN CONTEST NOTICES

CONTEST NOTICES

1. Name, address, fax number and email address of the contracting

authority and those of the service from which the additional documents

may be obtained

2. Description of the project

3. Type of contest: open or restricted

4. In the event of an open contest: time limit for the submission of projects

5. In the event of a restricted contest

(a)

number of participants contemplated

(b)

names of the participants already selected, if any

(c)

criteria for the selection of participants

(d)

time limit for requests to participate

6. If appropriate, indicate that the participation is restricted to a specified

profession

7. Criteria which will be applied in the evaluation of the projects

8. Names of any members of the jury who have already been selected

9. Indicate whether the jury's decision is binding on the contracting

authority

10. Number and value of any prizes

11. Payments to be made to all participants, if any

12. Indicate whether any contracts following the contest will or will not be

awarded to the winner or winners of the contest

13. Date of dispatch of the notice

NOTICE OF THE RESULTS OF A CONTEST

1. Name, address, fax number and email address of the contracting

authority

2. Description of the project

3. Total number of participants

4. Number of foreign participants

5. Winner(s) of the contest

6. Any prizes

7. Reference of the contest notice

8. Date of dispatch of the notice

ANNEX II

FEATURES CONCERNING PUBLICATION

Publication of notices

(a)

Notices referred to in regulations 48, 70 (3) and (9) and 57 (6) are sent

by the contracting authorities to the Office for Official Publications of

the European Communities in the format required by Commission

Directive 2001/78/EC of 13 September 2001 on the use of standard

forms in the publication of public contract notices (OJ L 285,

29.10.2001, p. 1.). The prior information notices referred to in

regulation 48 (1), first subparagraph, published on a buyer profile as

described in point 2(b), must also use that format, as must the notice of

such publication.

(b)

Notices referred to in regulations 48, 70 (3) and (9) and (57) 6 are

published by the Office for Official Publications of the European

Communities or by the contracting authorities in the event of a prior

information notice published on a buyer profile in accordance with

regulation 48 (1), first subparagraph.

In addition, contracting authorities may publish this information on the

Internet on a "buyer profile" as referred to in point 2(b).

(c)

The Office for Official Publications of the European Communities will

give the contracting authority the confirmation referred to in regulation

48 (10).

2. Publication of complementary or additional information

(a)

Contracting authorities are encouraged to publish the specifications and

the additional documents in their entirety on the Internet.

(b)

The buyer profile may include prior information notices as referred to in

regulation 48 (1), first subparagraph, information on ongoing

invitations to tender, scheduled purchases, contracts concluded,

procedures cancelled and any useful general information, such as a

contact point, a telephone and a fax number, a postal address and an e-

mail address.

3. Format and procedures for sending notices electronically

The format and procedure for sending notices electronically are

accessible at the Internet address "http://simap.eu.int".

(1) Where the Prime Minister determines that the

adjudication of tenders for the award of any particular contract

requires special expertise, skills or other specialist knowledge, he

may appoint a Special Contracts Committee for the award of that

public contract.

(2) The members of the Special Contracts Committee shall be

appointed for the duration of the adjudication process of the particular

call for tenders, until the tender is awarded or else until the Director

of Contracts declares that the award of the public contract is

withdrawn.

(3) Subject to the provisions of this regulation, regulation 8

shall apply to members of a Special Contracts Committee as it applies

to members of the General Contracts Committee.

(4) The provisions of Part IX shall apply to the Special

Contracts Committee.

List of Products in the Field of Defence

This list of products in the Field of Defence shall be that list as established by

the list covered in Annex II of EC Directive 93/36/EEC.

(1) The meetings of the Committees shall be called by

the Chairman who shall preside over such meetings. Any three

members of the Contracts Committee shall constitute a quorum at a

meeting thereof.

(2) Decisions shall be taken by a simple majority of the votes

of the members present and voting. The Chairman shall in the event

of an equality of votes, have a casting vote.

(3) The meetings of the Contracts Committees shall be open to

the public during the opening of bids. The list of tenders received,

together with the respective prices, except offers submitted in terms

of regulation 32, shall be given publicity by the Director immediately

after their opening and scheduling.

(4) The Contracts Committees established in terms of these

regulations shall regulate their own proceedings, unless otherwise

provided for herein. The Chairman of any committee established by

virtue of these regulations shall have a casting vote.

(5) The Contracts Committees shall have the function to assist

the Director in the execution of his duties in accordance with these

regulations. In the discharge of their functions, the Contracts

Committees shall be regulated by the provisions of these regulations

generally and in particular by the provisions of Part X.

REQUIREMENTS RELATING TO DEVICES FOR THE ELECTRONIC

RECEIPT OF TENDERS, REQUESTS FOR PARTICIPATION AND PLANS

AND PROJECTS IN CONTESTS

Devices for the electronic receipt of tenders, requests for participation and

plans and projects in contests must at least guarantee, through technical means and

appropriate procedures, that

(a)

electronic signatures relating to tenders, requests to participate

and the forwarding of plans and projects comply with national provisions

adopted pursuant to Directive 1999/93/EC;

(b) the exact time and date of the receipt of tenders, requests to

participate and the submission of plans and projects can be determined

precisely;

(c)

it may be reasonably ensured that, before the time limits laid

down, no-one can have access to data transmitted under these requirements;

(d) if that access prohibition is infringed, it may be reasonably

ensured that the infringement is clearly detectable;

(e)

only authorised persons may set or change the dates for opening

data received;

(f)

during the different stages of the contract award procedure or of

the contest access to all data submitted, or to part thereof, must be possible

only through simultaneous action by authorised persons;

(g) simultaneous action by authorised persons must give access to

data transmitted only after the prescribed date;

(h) data received and opened in accordance with these requirements

must remain accessible only to persons authorised to acquaint themselves

therewith.

The Minister shall, from time to time by regulations, Thresholds.

determine the thresholds applicable under these regulations. Such

thresholds shall be equal to, and categorised in the same fashion, as

the thresholds established pursuant to the relevant European Union

Directives as published from time to time in the Official Journal of

the European Union.

}ti[iet relatati ma’ Tag]mir biex ji[u ri`evuti Offerti b’mezzi elettroni`i, Talbiet

g]al Parte`ipazzjoni u Pjanti u Pro[etti fil-Kompetizzjonijiet

It-tag]mir biex ji[u ri`evuti b’mezzi elettroni`i offerti, talbiet g]all-

parte`ipazzjoni u pjanti u pro[etti fil-kompetizzjonijiet g]andu mill-inqas

jiggarantixxi, b’mezzi tekni`i u pro`eduri adatti, li

(a)

firem elettroni`i relatati ma’ l-offerti, talbiet g]all-parte`ipazzjoni u t-

trasmissjoni ta’ pjanti u pro[etti huma konformi mad-disposizzjonijiet

nazzjonali adottati skond id-Direttiva 1999/93/KE;

(b)

il-]in u d-data e\atti meta ji[u ri`evuti l-offerti, it-talbiet g]all-

parte`ipazzjoni u l-pre\entazzjoni ta’ pjanti u pro[etti jistg]u jkunu

stabbiliti b’mod pre`i\;

jista’ jkun ra[onevolment \gurat li, qabel il-limiti ta’ \minijiet

stabbiliti, ]add ma jkollu a``ess g]al data trasmessi skond dawn il-

]ti[iet;

(d)

jekk ikun hemm ksur ta’ din il-projbizzjoni ta’ a``ess, jista’ jkun

ra[onevolment \gurat li dan il-ksur jista’ jkun mag]ruf b’mod `ar;

(e)

huma persuni awtorizzati biss li jistg]u jistabbilixxu jew jibdlu d-dati

tal-ftu] tad-data li jkunu [ew ri`evuti;

(f)

matul l-istadji differenti tal-pro`edura ta’ l-g]oti tal-kuntratt jew tal-

kompetizzjoni, l-a``ess g]al kull data ri`evuti, jew xi parti minnhom,

ikun possibbli biss b’azzjoni simultanja minn persuni awtorizzati;

(g)

l-azzjoni simultanja minn persuni awtorizzati g]andha tag]ti a``ess

g]ad-data trasmessi wara d-data preskritta biss;

(h)

id-data ri`evuti u miftu]a skond dawn il-]ti[iet g]andhom ikunu

a``essibbli g]al dawk il-persuni biss li huma awtorizzati li

jiffamiljarizzaw ru]hom ma’ dik id-data.

Where a contracting authority intends to issue a call for Requirement of

tenders leading to the award of a public contract, the estimated value approval

issue and

of which falls within the provisions of regulation 14(b) and (c), then publication of

tender.

the contracting authority shall prior to its issue and publication send

to the Director a copy of the tender document including all other

relevant and supporting documentation.

(1) The Director of Contracts shall, by not later than six Annual report.

months after the end of each financial year, make and transmit to the

Minister a report dealing generally with the performance of the

General Contracts Committee, the Special Contracts Committee and

the Public Contracts Appeals Board during the financial year being

reported upon. The report shall, in particular, provide details

regarding appeals submitted by candidates and tenderers and any

person having or having had an interest in obtaining a particular

public contract in terms of these regulations and the decisions arrived

at by the General Contracts Committee and the Public Contracts

Appeals Board as the case may be.

(2) The Minister shall lay a copy of every such annual report

on the Table of the House at the earliest opportunity.

Without prejudice to the applicability of the other Applicability.

provisions of these regulations, public contracts -

(a)

the estimated value of which does not exceed Lm

20,000, shall be subject to Part II;

(b) the estimated value of which exceeds Lm 20,000 but

which does not exceed the thresholds, shall be subject to Parts

III and IV;

(c)

the estimated value of which equals or exceeds the

thresholds, shall be subject to Parts IV, V, VI Section A, VI

Section B, VI Section C and VII as may be applicable.

In calculating the estimated values of public contracts the

contracting authority shall use the provisions laid down in regulation

15. (1) In calculating the estimated value, the contracting

authority shall consider the estimated value of remuneration due to

the successful tenderer net of VAT. This estimation shall take account

of the estimated total amount, including any form of option and any

renewals of the contract. Where the contracting authority provided for

prizes or payments to candidates or tenderers it shall take them into

account when calculating the estimated value of the contract. The

estimate must be valid at the moment at which the contract notice is

sent or in cases where such notice is not required, at the moment at

which the contracting authority commences the contract awarding

procedure.

(2) Contracting authorities shall not establish an estimated

value of a public contract with the intention of avoiding the

application, in part or in whole, of these regulations.

(3) Contracting authorities shall not adopt any mechanism,

including sub-division of public contracts, the purpose of which is to

circumvent the application, in part or in whole, of these regulations.

(4) (a)

Where a proposed work or purchase of services may

result in contracts being awarded at the same time in the form of

separate lots, each one the subject of a contract, the value of each lot

must be taken into account for the purpose of calculating the

estimated value of the public contract and thus the applicability of

these regulations

Provided that in the case of a public services or a works

contract, contracting authorities may treat the separate lots as separate

contracts in respect of any lot which has an estimated value, net of

VAT, of less than Lm32,000 for services and Lm400,000 for works

and provided that the total value of such lots does not exceed 20 per

cent of the total value of lots as a whole.

(b) Where a proposal for the acquisition of similar

supplies may result in contracts being awarded at the same time in the

form of separate lots, account shall be taken of the total estimated

value of such lots for the purpose of estimating the contract value.

However, contracting authorities may treat the separate lots as

separate contracts for lots the estimated value of which is less than

Lm32,000 net of VAT provided that the aggregate cost of those lots

does not exceed 20 per cent of the aggregate value of the lots as a

whole.

(5) (a)

Where a public supplies contract or a public services

contract is a regular contract, a series of contracts, or a contract which

is to be renewed within a given time, the estimated value of the public

contract shall be established on the basis of

(i) either the actual aggregate value of

similar contracts concluded over the previous fiscal

year or twelve months, adjusted where possible, for

anticipated changes in quantity or value over the

twelve months following the initial contract;

(ii) or the estimated aggregate value during

the twelve months following the first delivery or

during the term of the contract, where this is in

excess of twelve months

Provided that the choice of the method used to calculate

the estimated value of a public contract may not be made with the

intention of avoiding the application of the more onerous obligations

under this regulation.

(b) If a proposed procurement of supplies or services of

the same type may lead to contracts being awarded at the same time

in separate parts, the estimated value of the total sum of these parts

must be taken as the basis for the calculation of the estimated value.

(6) Where a public services contract does not specify a total

contract value shall be

(a)

in the case of fixed-term public contracts, where

their term is forty-eight months or less, by the total contract

value for its duration;

(b) in the case of public contracts of indefinite duration,

or with a term of more than forty-eight months, by the monthly

instalment multiplied by forty-eight.

(7) Where a public supply contract is for the lease, rental or

hire purchase of products, the basis for calculating the estimated

value of the public supply contract shall be

(a)

in the case of fixed term public contracts, where

their term is twelve months or less, the total contract value for

its duration, or, where the term exceeds twelve months, its total

value including the estimated residual value;

(b) in the case of contracts for an indefinite period or in

cases where there is doubt as to the duration of the contracts, the

monthly value multiplied by forty-eight.

(8) For public service contracts, the value to be taken as a

basis for calculating the estimated value of a contract shall, where

appropriate, be the following

(a)

as regards insurance services, the premium payable;

(b) as regards banking and other financial services, the

fees, commissions, interest and other types of remuneration;

(c)

as regards contracts which involve design, of the fee

or commission payable.

(9) For the purposes of calculating the estimated value of a

public works contract, the contracting authority shall take into

account not only the value of the works but also the estimated value

of the supplies needed to carry out the works made available to the

contractor by the contracting authorities.

(10) For the purposes of calculating the estimated value of a

contract including both supplies and services, account shall be taken

of the total value of the supplies and services, regardless of their

respective values. The calculation shall include the value of siting and

installation operations.

(11) The basis of calculating the value of a framework

agreement and dynamic purchasing systems shall be the estimated

maximum value net of VAT of all the contracts envisaged for the total

term of the framework agreement or the dynamic purchasing system.

(1)

These regulations shall not apply to

(a)

public contracts governed by different procedural

rules and awarded in pursuance of an international agreement

concluded between Malta and one or more third countries

covering supplies or works intended for the joint

implementation or exploitation of a project by the signatory

states

Provided that the international agreement has been

concluded in conformity with the Treaty establishing the

European Community and has been notified to the Commission;

(b) public contracts governed by different procedural

rules and awarded pursuant to the particular procedure of an

international organisation;

(c)

public contracts which are declared secret or the

execution of which must be accompanied by special security

measures in accordance with the laws, regulations or

administrative provisions in force from time to time in Malta or

when the protection of Malta’s security so requires;

(d) undertakings in a Member State or a third country in

pursuance of an international agreement relating to the

stationing of troops and concerning the undertakings of a

Member State or of a third country;

(e)

public contracts for the principal purpose of

permitting the contracting authorities to provide or exploit

public telecommunications networks or to provide to the public

one or more telecommunications services;

(f)

public service contracts for the acquisition or rental,

by whatever financial means, of land, existing buildings or other

immovable property or concerning rights thereon; nevertheless

financial service contracts concluded at the same time as, before

or after the contract of acquisition or rental, in whatever form,

shall be subject to this regulation;

(g) public service contracts for the acquisition,

development, production or co-production of programme

material intended for broadcasting by broadcasters and

contracts for broadcasting time;

(h) public service

contracts

for

arbitration

and

conciliation services;

(i)

public service contracts for financial services in

connection with the issue, sale, purchase or transfer of securities

or other financial instruments, in particular transactions by the

contracting authorities to raise money or capital, and central

bank services;

(j)

public service contracts for employment contracts;

(k) public service contracts for research and

development services other than those where benefits accrue

exclusively to the contracting authority for its use in the conduct

of its own affairs, on condition that the service provided is

wholly remunerated by the contracting authority.

(2) Without prejudice to the application of regulation 64(2),

these regulations shall not apply to public service concession

contracts.

(3) These regulations shall not apply to public service

contracts awarded by a contracting authority to another contracting

authority or to an association of contracting authorities on the basis of

an exclusive right which they enjoy pursuant to a law, regulation or

administrative provision which is compatible with the EC Treaty.

(4) Contracting authorities shall not be obliged to supply

information, the disclosure of which is deemed contrary to the

essential interests of Malta’s security.

PART II

Rules governing public contracts whose value does

not exceed Lm 20,000

Where the estimated value of a public contract does not

exceed Lm 20,000 only the relevant provisions of Part I and the

whole of Part II shall apply.

All public contracts, the estimated value of which does not

exceed Lm 20,000, shall be regulated and administered by the

contracting authority, which shall nevertheless ensure that all the

applicable provisions contained in Part I and Part II are complied

with.

(1) Except where the Minister otherwise directs or

approves, the procedure for the procurement of equipment, stores,

works or services by the contracting authorities listed in Schedule 2

shall be as follows

(a)

where the estimated value does not exceed Lm

1,000, the equipment, stores, works or services may be procured

departmentally either after obtaining quotations or direct from

the open market at the discretion of the Head of Department

taking into consideration the amount involved, the urgency

attached to the procurement and restrictions of choice and

availability;

(b) where the estimated value exceeds Lm 1,000 but

does not exceed Lm 2,500, the equipment, stores, works or

services may be procured departmentally after a call for tenders,

or after obtaining quotations, or direct from the open market,

taking into consideration the amount involved, the urgency

attached to the procurement and restrictions of choice and

availability, and shall be approved by the Minister responsible

for that department, or by such member of the department as

may be authorised by that Minister;

(c)

purchases of the same or closely similar material in

different lots under paragraphs (a) and (b) during a period of six

months shall not exceed a total value of Lm 10,000;

(d) where the estimated value exceeds Lm 2,500 but not

Lm 20,000, the equipment, stores, works or services may be

procured after a departmental call for tenders. The tenders shall

be opened in public by three senior officers of the said

department and the prices quoted shall also be made public. The

provisions of regulation 27 shall apply for the adjudication of

the tenders submitted

Provided that the Minister may by regulations allow

limits higher than Lm 20,000 up to the thresholds, in the case of

particular departments, and may authorise, as and when he

deems appropriate, the setting up of procurement committees as

provided for in these regulations

Provided further that the Minister may allow that

variations and the imposition or remission of penalties in

respect of such contracts be approved by the Minister charged

with responsibility for that department, who may delegate his

authority in writing to the Parliamentary Secretary, the

Permanent Secretary or the Head of Department.

(2) Every six months the Head of Department shall publish in

the Gazette a full list of all departmental contracts awarded by him

and a list of all cases involving variations which exceed the original

contract values by more than 5 per cent. In such cases details should

include the nature of the contracts, the original contract values and

the final contract values.

(3) In all cases in which the authorities listed in Schedule 2

wish to adopt the restricted procedure in order to carry out their

procurement under this regulation, the prior consent of the Director of

Contracts shall be required.

(4) Without prejudice to subregulation (1)(d) direct contracts

valued in excess of Lm 2,500 may, in exceptional cases, be placed by

any contracting authority listed in Schedule 2 after such an authority

obtains the prior written approval of the Minister who may delegate

his authority in writing to the Permanent Secretary or any other senior

official in his Ministry.

(5) The financial limits referred to in this regulation may be

varied by order of the Minister published by regulations.

(6) Contracting authorities operating in terms of an enabling

law shall follow the procedures stipulated in that law in the award of

direct contracts.

(1) Where the estimated value of the public contract

exceeds Lm 5,000 but not Lm 20,000 and is issued by a Local

Council or by an authority listed in Schedule 2, any interested

economic operator shall have a right to make a complaint to the

General Contracts Committee in accordance with the procedure laid

down in these regulations.

(2) The contracting authority shall be obliged to issue a notice

and affix an advertisement, in a prominent place at its premises,

indicating the awarded public contract, the financial aspect of the

award and the name of the successful tenderer.

(3) Any interested economic operator who may be aggrieved

by the award shall, within three working days from the publication of

the notice, file a letter of objection, together with a deposit of Lm

100, with the contracting authority, clearly setting forth any reason

for his complaint. The letter by the complaining tenderer shall be

affixed on the notice board of the contracting authority and shall be

brought to the attention of the recommended tenderer. The

contracting authority shall be precluded from concluding the contract

during the period allowed for the submission of appeals. The award

process shall be completely suspended if an appeal is eventually

submitted.

(4) After the expiry of the period allowed for the submission

of a complaint, the contracting authority shall deliver the letter of

complaint, the deposit receipt and all documents relating to the public

contract in question to the Director of Contracts.

(5) The Director of Contracts shall refer the case to the

General Contracts Committee which shall examine the matter in a fair

and equitable manner and determine the complaint by upholding or

rejecting it. The written decision of the General Contracts Committee

shall be affixed on the notice board of the contracting authority and

copies thereof shall be forwarded to all the parties involved.

(6) In its deliberation the Committee shall have the authority

to obtain in any manner it deems appropriate, any other information

not already provided by the contracting authority. The General

Contracts Committee’s decision shall be final and binding on the

contracting authority and the interested economic operator who shall

not be afforded any further recourse.

(7) Tender documents issued in terms of this Part shall include

a clause informing tenderers that the award of the contract is subject

to the right of recourse as provided for in this regulation, a copy of

which should be reproduced in the documents.

(8) The Minister shall have the authority to order by legal

notice, that recourse as provided in this regulation be made available

also by authorities listed in Schedule 3 and to prescribe the procedure

by which such recourse is to be granted.

PART III

Rules governing public contracts whose value exceeds Lm 20,000

but does not exceed the thresholds

(1) In addition to this Part, Parts I and IV and Applicability.

regulations 39 to 41 also apply to public contracts where the

estimated value exceeds Lm20,000 but does not exceed the

thresholds

Provided that contract notices shall be published only in

the Gazette and in such form as stipulated by the Director.

(2) Except where the Minister otherwise directs or approves,

the procedure for the award of a public contract shall be that as

stipulated in Parts I and IV. The Minister may delegate his authority

in writing to the Permanent Secretary or to any other senior official in

his Ministry.

All public contracts, the estimated value of which exceeds Regulation.

Lm 20,000 but does not exceed the thresholds, shall be subject to the

regulatory and other functions of the Department and Director of

Contracts

Provided that public contracts required by a contracting

authority listed in Schedule 2 shall be issued, administered and

determined by the Department of Contracts, which for the purposes of

these regulations shall act on behalf of the contracting authority

Provided further that public contracts required by those

contracting authorities listed in Schedule 3 shall be issued,

administered and determined by the contracting authorities therein

listed subject to the provisions set out in these regulations including

but not limited to the right of appeal.

PART IV

Rules common to public contracts whose value exceeds Lm 20,000

This Part shall apply to all public contracts whose value is

in excess of Lm 20,000.

(1) Subject to the other provisions of these regulations,

procurement of services, supplies and works shall be made by public

contract after a call for tenders in accordance with these regulations.

(2) Subject to the other provisions of these regulations, in

awarding a public contract, a contracting authority shall apply the

open or restricted procedures as defined in these regulations.

(3) In the specific circumstances expressly provided for in

regulation 47, contracting authorities may award their public

contracts by means of the competitive dialogue.

(4) In the specific cases and circumstances referred to

expressly in regulations 58, 59, 65, 66, 71 and 72, the contracting

authorities may apply a negotiated procedure, with or without

publication of the contract notice.

(5) In all cases in which the authorities listed in Schedule 2

wish to adopt the restricted or negotiated procedure in order to carry

out their procurement, the prior consent of the Director shall be

required.

(6) In all cases in which the authorities listed in Schedule 3

wish to adopt the restricted or negotiated procedure in order to carry

out their procurement, prior approval from the Minister responsible

for that authority, or from a senior official in that Ministry duly

delegated in writing by his Minister to grant such approval, shall be

required.

(7) In restricted and negotiated procedures with a call for

competition the contracting authorities shall, on the basis of

information given relating to the candidate’s personal position as well

as of the information and formalities necessary for the purposes of

regulation 49, select the candidates whom they will invite to submit a

tender or to negotiate.

(1)

Contracting authorities may conclude framework Framework

agreements.

agreements.

(2) (a)

For the purpose of concluding framework

agreements, contracting authorities shall follow the rules of procedure

referred to herein for all phases up to the award of contracts based on

the framework agreement. The parties to the framework agreement

shall be chosen by applying the award criteria in accordance with

regulation 27.

(b) Contracts based on a framework agreement shall be

awarded in accordance with the procedures laid down in

subregulations (3) and (4). Such procedures shall be applied only

between the contracting authorities and the economic operators

originally party to the framework agreement.

(c)

When awarding contracts based on a framework

agreement, the parties may under no circumstances make substantial

amendments to the terms laid down in that framework agreement, in

particular in the case referred to in subregulation (3).

(d) The term of a framework agreement may not exceed

four years, save in exceptional cases duly justified, in particular by

the subject of the framework agreement.

(e)

Contracting authorities may not use framework

agreements improperly or in such a way as to prevent, restrict or

distort competition.

(3) Where a framework agreement is concluded with a single

economic operator, contracts based on that agreement shall be

awarded within the limits of the terms laid down in the framework

agreement. For the award of those contracts, contracting authorities

may consult in writing the operator party to the framework

agreement, requesting it to supplement its tender as necessary.

(4) (a)

Where a framework agreement is concluded with

several economic operators, the latter must be at least three in

number, insofar as there is a sufficient number of economic operators

to satisfy the selection criteria and, or of admissible tenders which

meet the award criteria.

(b) Contracts based on framework agreements

concluded with several economic operators may be awarded

(i)

either by application of the terms laid down in

the framework agreement without reopening competition;

(ii) or where not all the terms are laid down in the

framework agreement, when the parties are again in

competition on the basis of the same and, if necessary,

more precisely formulated terms, and, where appropriate,

other terms referred to in the specifications of the

framework agreement, in accordance with the procedure

contained in paragraph (c).

(c)

(i) For every contract to be awarded, contracting

authorities shall consult in writing the economic operators

capable of performing the contract.

(ii) Contracting authorities shall fix a time limit

which is sufficiently long to allow tenders for each

specific contract to be submitted, taking into account

factors such as the complexity of the subject-matter of the

contract and the time needed to send in tenders.

(iii) Tenders shall be submitted in writing, and their

content shall remain confidential until the stipulated time-

limit for reply has expired.

(iv) Contracting authorities shall award each

contract to the tenderer who has submitted the best tender

on the basis of the award criteria set out in the

specifications of the framework agreement.

(1)

Contracting authorities may use dynamic purchasing

(2) (a)

In order to set up a dynamic purchasing system,

contracting authorities shall follow the rules of the open procedure in

all its phases up to the award of contracts to be concluded under this

system. All tenderers satisfying the selection criteria and having

submitted an indicative tender which complies with the specification

and any possible additional documents shall be admitted to the

system. Indicative tenders may be improved at any time provided that

they continue to comply with the specification.

(b) With a view to setting up the system and to the award of

contracts under that system, contracting authorities shall use solely

electronic means in accordance with regulation 44.

(3) For the purposes of setting up the dynamic purchasing

system, contracting authorities shall

(a)

publish a contract notice making it clear that a

dynamic purchasing system is involved;

(b) indicate in the specification, amongst other matters,

the nature of the purchases envisaged under the system, as well

as all the necessary information concerning the purchasing

system, the electronic equipment used and the technical

connection arrangements and specifications;

(c)

offer by electronic means, on publication of the

notice and up to the expiry of the system, unrestricted, direct

and full access to the specification and to any additional

documents and shall indicate in the notice the internet address at

which such documents may be consulted.

(4) Contracting authorities shall give any economic operator,

throughout the entire period of the dynamic purchasing system, the

possibility of submitting an indicative tender and of being admitted to

the system under the conditions referred to in subregulation (2). They

shall complete evaluation within a maximum of fifteen days from the

date of submission of the indicative tender. However, they may

extend the evaluation period provided that no invitation to tender is

issued in the meantime. The contracting authority shall inform the

tenderer referred to herein at the earliest possible opportunity of its

admittance to the dynamic purchasing system or of the rejection of its

indicative tender.

(5) Each specific contract must be subject to an invitation to

tender. Before issuing the invitation to tender, contracting authorities

shall publish a simplified contract notice inviting all interested

economic operators to submit an indicative tender, in accordance with

subregulation (4), within a time-limit that may not be less than fifteen

days from the date on which the simplified notice was sent.

Contracting authorities may not proceed with tendering until they

have completed evaluation of all the indicative tenders received by

that deadline.

(6) Contracting authorities shall invite all tenderers admitted

to the system to submit a tender for each specific contract to be

awarded under the system. To that end they shall set a time-limit for

the submission of tenders. They shall award the contract to the

tenderer which submitted the best tender on the basis of the award

criteria set out in the contract notice for the establishment of the

dynamic purchasing system. Those criteria may, if appropriate, be

formulated more precisely in the invitation referred to herein.

(7) A dynamic purchasing system may not last for more than

four years, except in duly justified exceptional cases. Contracting

authorities may not resort to this system to prevent, restrict or distort

competition. No charges may be billed to the interested economic

operators or to parties to the system.

(1) Contracts shall be awarded on the basis of the

criteria laid down in this regulation and regulation 28, taking into

account regulation 46, after the suitability of the economic operators

not excluded under regulations 49 and 51(4) and (5) has been checked

by contracting authorities in accordance with the criteria of economic

and financial standing, of professional and technical knowledge or

ability referred to in regulations 35, 50, 51 and 52 and, where

appropriate, with the non-discriminatory rules and criteria referred to

in subregulation (3).

(2) Contracting authorities may require candidates and

tenderers to meet minimum capacity levels in accordance with

regulations 50 and 51. The extent of the information referred to in

regulations 51 and 52 and the minimum levels of ability required for a

specific contract must be related and proportionate to the subject-

matter of the contract. The minimum levels shall be referred to in the

contract notice.

(3) Contracting authorities shall determine the award of public

contracts on the following criteria

(a)

the most economically advantageous offer; or

(b) the lowest price offered compliant with the tender

specifications.

(4) Where the award is made to the most economically

advantageous offer, various criteria relating to the contract, including

but not limited to, price, delivery date, delivery period or period of

completion, running costs, cost-effectiveness, quality, aesthetic and

functional characteristics, technical merit, profitability, after-sales

service and technical assistance shall be taken into consideration.

(5) Where the contract is to be awarded on the basis of the

most economically advantageous offer, the contracting authority

shall, in the contract documents or, in the case of a competitive

dialogue, in the descriptive document, indicate all the criteria it

intends to apply in the determination of the award, indicating the

relative weighting

Provided that the weightings can be expressed by

providing for a range with an appropriate maximum spread

Provided further that where, in the opinion of the

contracting authority, weighting is not possible for demonstrable

reasons, the contracting authority shall indicate in the contract notice

or contract documents or, in the case of a competitive dialogue, in the

descriptive document, the criteria in descending order of importance.

(1) A contracting authority shall be entitled to reject Special

tenders which appear to be abnormally low in relation to the activity considerations

relating to rules

to be carried out, but it shall request tenderers to submit in writing, governing

award criteria.

details of the constituent elements of the tender which it considers

relevant and shall verify those constituent elements taking account of

the explanations received.

(2) The contracting authority may take into consideration the

tenderer’s explanations relating to the economics of the

manufacturing process, or to the technical solutions proposed, or to

the exceptionally favourable conditions available to it, to the

originality of the tenderer’s proposal, compliance with the provisions

relating to employment protection and working conditions in force at

the place where the work, service or supply is to be performed, and

the possibility of the tenderer obtaining state aid

Provided that where a contracting authority establishes that

a tender is abnormally low because the tenderer has obtained state

aid, the tender can be rejected on that ground alone only after

consultation with the tenderer where the latter is unable to prove,

within a sufficient time limit fixed by the contracting authority, that

the aid in question was granted legally. Contracting authorities shall

inform the Commission and the Director when it rejects a tender in

these circumstances.

(3) If the documents relating to a public contract provide for

its award at the lowest price tendered, the contracting authority shall

communicate to the Director any reasons for the rejection of tenders

which it considers to be too low.

(4) Tenders shall be submitted in writing. However, when

authorised by the contracting authority, tenders may be submitted by

any means provided -

(a)

that each tender contains all the information

necessary for its evaluation;

(b) that the confidentiality of tenders is maintained

pending their evaluation;

(c)

that, where necessary, for reasons of legal proof,

such tenders are confirmed as soon as possible in writing or by

dispatch of a certified copy;

(d) that tenders are opened after the time limit for their

submission has expired.

(1)

Contracting authorities may use electronic auctions.

(2) (a)

In open, restricted or negotiated procedures in the

case referred to in regulation 38(1), the contracting authorities may

decide that the award of a public contract shall be preceded by an

electronic auction when the contract specifications can be established

with precision.

(b) In the same circumstances, an electronic auction

may be held on the reopening of competition among the parties to a

framework agreement as provided for in regulation 25(2)(b) and on

the opening for competition of contracts to be awarded under the

dynamic purchasing system referred to in regulation 26.

(c)

The electronic auction shall be based

(i) either solely on prices when the contract is

awarded to the lowest price,

(ii) or on prices and, or on the new values of the

features of the tenders indicated in the specification when

the contract is awarded to the most economically

advantageous tender.

(3) Contracting authorities which decide to hold an electronic

auction shall state that fact in the contract notice. The specifications

shall include, inter alia, the following details

(a)

the features, the values for which will be the subject

of electronic auction, provided that such features are

quantifiable and can be expressed in figures or percentages;

(b) any limits on the values which may be submitted, as

they result from the specifications relating to the subject of the

contract;

(c)

the information which will be made available to

tenderers in the course of the electronic auction and, where

appropriate, when it will be made available to them;

(d) the relevant information concerning the electronic

auction process;

(e)

the conditions under which the tenderers will be able

to bid and, in particular, the minimum differences which will,

where appropriate, be required when bidding;

(f)

the relevant information concerning the electronic

equipment used and the arrangements and technical

specifications for connection.

(4) Before proceeding with an electronic auction, contracting

authorities shall make a full initial evaluation of the tenders in

accordance with any award criterion set and with the weighting fixed

for them.

All tenderers who have submitted admissible tenders shall be

invited simultaneously by electronic means to submit new prices and,

or new values; the invitation shall contain all relevant information

concerning individual connection to the electronic equipment being

used and shall state the date and time of the start of the electronic

auction. The electronic auction may take place in a number of

successive phases. The electronic auction may not start sooner than

two working days after the date on which invitations are sent out.

(5) When the contract is to be awarded on the basis of the most

economically advantageous tender, the invitation shall be

accompanied by the outcome of a full evaluation of the relevant

tenderer, carried out in accordance with a weighting established by a

range with an appropriate maximum spread. Such invitation shall also

state the mathematical formula to be used in the electronic auction to

determine automatic re-rankings on the basis of the new prices and, or

new values submitted. That formula shall incorporate the weighting

of all the criteria fixed to determine the most economically

advantageous tender, as indicated in the contract notice or in the

specifications; for that purpose, any ranges shall, however, be

reduced beforehand to a specified value. Where variants are

authorised, a separate formula shall be provided for each variant.

(6) Throughout each phase of an electronic auction the

contracting authorities shall instantaneously communicate to all

tenderers at least sufficient information to enable them to ascertain

their relative rankings at any moment. They may also communicate

other information concerning other prices or values submitted,

provided that that is stated in the specifications. They may also at any

time announce the number of participants in that phase of the auction.

In no case, however, may they disclose the identities of the tenderers

during any phase of an electronic auction.

(7) Contracting authorities shall close an electronic auction in

one or more of the following manners

(a)

in the invitation to take part in the auction they shall

indicate the date and time fixed in advance;

(b) when they receive no more new prices or new values

which meet the requirements concerning minimum differences.

In that event, the contracting authorities shall state in the

invitation to take part in the auction the time which they will

allow to elapse after receiving the last submission before they

close the electronic auction;

(c)

when the number of phases in the auction, fixed in

the invitation to take part in the auction, has been completed.

When the contracting authorities have decided to close an

electronic auction in accordance with paragraph (c), possibly in

combination with the arrangements laid down in paragraph (b), the

invitation to take part in the auction shall indicate the timetable for

each phase of the auction.

(8) After closing an electronic auction contracting authorities

shall award the contract in accordance with regulation 27 on the basis

of the results of the electronic auction. Contracting authorities may

not have improper recourse to electronic auctions nor may they use

them in such a way as to prevent, restrict or distort competition or to

change the subject-matter of the contract, as put up for tender in the

published contract notice and defined in the specification.

(1) In the contract documents, the contracting authority

may ask the tenderer to indicate in his tender any share of the contract

which he intends to sub-contract to third parties and any proposed

sub-contractors. Such indication shall be without prejudice to the

tenderer’s liability.

(2) In the contract documents, contracting authorities may lay

down special conditions relating to the performance of a contract,

provided that these are compatible with Community law and are

indicated in the contract notice or in the specifications. The

conditions governing the performance of a contract may, in particular,

concern social and environmental considerations.

(1) Groups of economic operators may submit tenders

or put themselves forward as candidates. These groups shall not be

required by contracting authorities to assume a specific legal form;

however, the group selected may be required to do so when it has

been awarded the contract, to the extent that this change is necessary

for the satisfactory performance of the contract.

(2) In the case of public service and public works and public

supply contracts covering in addition services and or siting and

installation operations, legal persons may be required to indicate in

the tender or in a request for participation, the names and relevant

professional qualifications of the staff to be responsible for the

performance of the public contract in question.

Where, in accordance with a call for tenders, an offer Separate

consists of separate packages, the procedure set out in Part XII shall packages.

be followed.

(1) There shall be established a Public Contracts Appeals Board.

Appeals Board to be known as the Appeals Board which shall be

regulated in terms of Part XIV.

(2) It shall be the function of the Board to hear and determine

complaints submitted by any person having or having had an interest

in obtaining a particular public supply, public service or public works

contract and who has been or risks being harmed by an alleged

infringement by those authorities listed in Schedule 1 and whose

value exceeds Lm 20,000, in accordance with the procedures laid

down in Parts XII and XIII.

(3) Every contracting authority listed in Schedule 1 shall

indicate in its tender documents that the award of the contract is

subject to the appeals procedure as set forth in these regulations. The

document shall include a copy of Parts XII or XIII, as the case may

be, for the guidance of tenderers.

(1) Contracting authorities listed in Schedule 3 shall, by Statistical and

not later than April of each year, send to the Director a report in other reports.

relation to each public contract awarded by it during the previous

calendar year. This report shall include, apart from the details

contained in regulation 43(4)

(a)

the value, estimated if necessary,

of

the

consideration payable under the contract;

(b) whether the open, negotiated or restricted procedure

was used;

(c)

if the restricted procedure was used, pursuant to

which procedures was it used;

(d) the principal category of service, supply or work to

be carried out; and

(e)

the nationality of the person to whom the contract

was awarded.

(2) A contracting authority shall send to the Director a report

containing such information as the Director may from time to time

require in respect of any particular public contract irrespective of its

value.

(1) Economic operators registered in the official lists of

their country may, for each contract, submit to the contracting

authority a certificate of registration issued by the competent

authority. This certificate shall state the reference which enabled them

to be registered in the list and the classification given in this list.

(2) Certified registration in official lists of economic operators

by the competent bodies in EU Member States shall constitute a

presumption of suitability corresponding to the undertaking’s

classification.

(3) Information which can be deduced from registration in

official lists may not be questioned. However, with regard to the

payment of social security contributions, an additional certificate may

be required of any registered undertaking whenever a contract is

offered.

(4) The contracting authorities shall apply the above

provisions only in favour of economic operators established in the

Member State holding the official list.

(5) When economic operators from other Member States are

being registered in a local official list, no proof or statement can be

required in addition to those required of national undertakings.

PART V

Rules governing public contracts whose estimated value equals or

exceeds the threshold

(1) Public contracts whose estimated value is equal to

the threshold or is in excess thereof shall be governed by Part I, Part

IV and this Part and shall be awarded using the open procedure, the

restricted procedure or in the exceptional cases foreseen in

regulations 58, 59, 65, 66, 71 and 72, the negotiated procedure

Provided that public contracts required by those

contracting authorities listed in Schedule 2 shall be issued,

administered and determined by the Department of Contracts, which

for the purposes of these regulations shall act on their behalf; and

public contracts required by those contracting authorities listed in

Schedule 3 shall be issued, administered and determined by the

contracting authorities therein listed subject to the provisions set out

in these regulations.

(2) This Part shall also apply to public contracts awarded by

contracting authorities in the field of defence, subject to Article 296

of the E.C. Treaty.

(1) (a) In restricted procedures, negotiated procedures Number of

with publication of a contract notice and in the competitive dialogue tenderers.

procedure, contracting authorities may limit the number of suitable

candidates they will invite to tender, to negotiate or to conduct a

dialogue with, provided a sufficient number of suitable candidates is

available. The contracting authorities shall indicate in the contract

notice the objective and non-discriminatory criteria or rules they

intend to apply, the minimum number of candidates they intend to

invite and, where appropriate, the maximum number.

(b) In the restricted procedure the minimum shall

be five. In the negotiated procedure with publication of a contract

notice and the competitive dialogue procedure the minimum shall be

three. In any event the number of candidates invited shall be

sufficient to ensure genuine competition.

(c) The contracting authorities shall invite a

number of candidates at least equal to the minimum number set in

advance. Where the number of candidates meeting the selection

criteria and the minimum levels of ability is below the minimum

number, the contracting authority may continue the procedure by

inviting the candidates having the required capabilities. In the context

of this same procedure, the contracting authority may not include

other economic operators who did not request to participate, or

candidates who do not have the required capabilities.

(2) Where the contracting authorities exercise the option of

reducing the number of solutions to be discussed or of tenders to be

negotiated, as provided for in regulation 47(4), 58(4), 65(4) and

71(4), they shall do so by applying the award criteria stated in the

contract notice, in the specifications or in the descriptive document.

In the final stage, the number arrived at shall make for genuine

competition insofar as there are enough solutions or suitable

candidates.

(1) Contracting authorities may award a public contract Negotiated

by negotiated procedure, after prior publication of an EU contract procedures.

notice in the cases mentioned in regulations 58, 65 and 71.

(2) Contracting authorities may award a public contract by

negotiated procedure, without prior publication of an EU contract

notice in the cases mentioned in regulations 59, 66 and 72.

(3) The authorities listed in Schedule 2 shall require the

consent of the Director if they wish to adopt the negotiated or

restricted procedures in order to carry out their procurement under

this regulation.

(4) The authorities listed in Schedule 3 which wish to adopt

the restricted or negotiated procedures in order to carry out their

procurement under this regulation, shall require the prior consent

from the Minister responsible for that authority, or from an official in

that Ministry duly delegated in writing by his Minister.

(5) (a)

In all instances where the negotiated procedure in

accordance with this regulation is to be adopted, the matter may be

referred by the Director of Contracts or the contracting authority to

the Minister who shall appoint an ad hoc committee with the

responsibility of conducting the negotiated procedure, in accordance

with this regulation, on behalf of the contracting authority.

(b) The ad hoc committee shall be composed of such

number of persons as the Minister may deem appropriate after having

due regard to the complexity of the particular contract.

(c)

The ad hoc committee shall ensure that the

provisions of this regulation are duly observed, and shall identity the

tenderer who submitted the most economically advantageous tender.

(d) The ad hoc committee shall operate under the

supervision of the Director of Contracts.

When fixing the time-limits for the receipt of tenders and

requests to participate, contracting authorities shall take account in

particular of the complexity of the contract and the time required for

drawing up tenders, without prejudice to the minimum time limits set

out in regulation 40.

(1) In the case of open procedures, the minimum time

limit for the receipt of tenders shall be fifty-two days from the date on

which the contract notice was sent.

(2) In the case of restricted procedures, negotiated procedures

with publication of a contract notice referred to in regulation 38(1)

and the competitive dialogue

(a)

the minimum time-limit for receipt of requests to

participate shall be thirty-seven days from the date on which the

contract notice is sent;

(b) in the case of restricted procedures, the minimum

time-limit for the receipt of tenders shall be forty days from the

date on which the invitation is sent.

(3) (a)

When contracting authorities have published a prior

information notice, the minimum time-limit for the receipt of tenders

under subregulations (1) and (2)(b) may, as a general rule, be

shortened to thirty-six days, but under no circumstances to less than

twenty-two days.

(b) The time limit shall run from the date on which the

contract notice was sent in open procedures, and from the date on

which the invitation to tender was sent in restricted procedures.

(c)

The shortened time-limit as contained herein shall

be permitted provided that the prior information notice has included

all the information required for the contract notice in Annex I A in

Schedule 9, insofar as that information is available at the time the

notice is published and that the prior information notice was sent for

publication between fifty-two days and twelve months before the date

on which the contract notice was sent.

(4) Where notices are drawn up and transmitted by electronic

means in accordance with the format and procedures for transmission

indicated in point 3 of Annex II in Schedule 9, the time-limits for the

receipt of tenders referred to in subregulations (1) and (3) in open

procedures, and the time limit for the receipt of the request to

participate referred to in subregulation (2)(a), in restricted and

negotiated procedures and the competitive dialogue, may be

shortened by seven days.

(5) The time-limits for receipt of tenders referred to in

subregulations (1) and (2)(b) may be reduced by five days where the

contracting authority offers unrestricted and full direct access by

electronic means to the contract documents and any supplementary

documents from the date of publication of the notice in accordance

with Schedule 9, Annex II, specifying the text of the notice and the

internet address at which the documentation is accessible. This

reduction may be added to that referred to in subregulation (4).

(6) If for whatever reason, the specifications and the

supporting documentation or additional information, although

requested in good time, are not supplied within the time-limits set in

subregulation (8) and in regulation 43, or where tenders can be made

only after a visit to the site or after on-the-spot inspection of

documents supporting the contract documents, the time-limits for the

receipt of tenders shall be extended so that all economic operators

concerned may be aware of all the information needed to produce

tenders.

(7) In the case of restricted procedures and negotiated

procedures with publication of a contract notice referred to in

regulation 38(1), where urgency renders impracticable the time-limits

laid down in this regulation, contracting authorities may fix

(a)

a time-limit for the receipt of requests to participate

which may not be less than fifteen days from the date on which

the contract notice was sent, or less than ten days if the notice

was sent by electronic means, in accordance with the format and

procedures for transmission indicated in point 3 of Annex II of

Schedule 9; and

(b) in the case of restricted procedures, a time-limit for

the receipt of tenders which shall be not less than ten days from

the date of invitation to tender.

(8) In open procedures, when contracting authorities do not

offer unrestricted and full direct access by electronic means in

accordance with subregulation (5) to the specifications and

supporting documentation, the specifications and supplementary

documents shall be sent to economic operators by the contracting

authority within six days from the date of receipt of the request to

participate, provided that the request was made in good time before

the deadline for submission of tenders

Provided that economic operators shall agree to make good

the costs of such dispatch

Provided further that where economic operators have a

presence in Malta, all documents shall, at the option of each

economic operator, either be collected by the economic operators

from the place indicated in the contract notice or shall be dispatched

to them provided that they agree to make good the costs of such

dispatch.

(9) Insofar as it has been requested in good time, additional

information relating to the contract documents shall be supplied by

the contracting authorities or competent departments not later than six

days before the final date fixed for the receipt of tenders.

Where a contracting authority intends to award a public

works concession contract, the provisions of regulation 70 shall

apply.

The calculation of the time limits under this Part shall be Application of

made in accordance with Council Regulation (EEC, Euratom) No Council

Regulation

1182/71 of 3 June 1971 determining the rules applicable to periods, 1182/71.

dates and time limits.

(1) (a) In restricted procedures, competitive dialogue Invitation and

procedures and negotiated procedures with publication of a contract information.

notice within the meaning of regulation 38(1), contracting authorities

shall simultaneously and in writing invite the selected candidates to

submit their tenders or to negotiate or, in the case of a competitive

dialogue, to take part in the dialogue.

(b)

The invitation to the candidates shall include

(i) either a copy of the specifications or of

the descriptive document and any supporting

documents,

(ii) or a reference to accessing the

specifications and the other documents indicated in

subparagraph (i), when they are made directly

available by electronic means in accordance with

regulation 40(5).

(c) Where an entity other than the contracting

authority responsible for the award procedure has the specifications,

the descriptive document and, or any supporting documents, the

invitation shall state the address from which those specifications, that

descriptive document and those documents may be requested and, if

appropriate, the deadline for requesting such documents, and the sum

payable for obtaining them and any payment procedures. The

competent department shall send that documentation to the economic

operator without delay upon receipt of a request.

(d) The

additional

information

on

the

specifications, the descriptive document or the supporting documents

shall be sent by the contracting authority or the competent department

not less than six days before the deadline fixed for the receipt of

tenders, provided that it is requested in good time. In the event of a

restricted or an accelerated procedure, that period shall be four days.

(e) In addition, the invitation to submit a tender, to

participate in the dialogue or to negotiate must contain at least

(i) a reference to the contract notice

published;

(ii) the deadline for the receipt of the tenders,

the address to which the tenders must be sent and the

language or languages in which the tenders must be

drawn up;

(iii) in the case of competitive dialogue the

date and the address set for the start of consultation

and the language or languages used;

(iv) a reference to any possible adjoining

documents to be submitted, either in support of

verifiable declarations by the tenderer in accordance

with regulation 27(1) and (2) and regulation 37 or to

supplement the information referred to in that

regulation, and under the conditions laid down in

regulations 50 and 51;

(v) the relative weighting of criteria for the

award of the contract or, where appropriate, the

descending order of importance for such criteria, if

they are not given in the contract notice, the

specifications or the descriptive document.

Provided that, in the case of contracts awarded

in accordance with the rules laid down in regulation

47, the information referred to in paragraph (e)(ii)

shall not appear in the invitation to participate in the

dialogue but it shall appear in the invitation to

submit a tender.

Contracting authorities shall as soon as possible

inform candidates and tenderers of decisions reached concerning the

conclusion of a framework agreement, the award of contracts or

admittance to a dynamic purchasing system, and shall do so in writing

if requested by candidates or tenderers.

(b) Contracting authorities shall inform candidates and

tenderers of the grounds for any decision not to conclude a framework

agreement or award a contract for which there has been call for

competition, or of their decision to recommence the procedure or

implement a dynamic purchasing system, and shall do so in writing if

requested by candidates or tenderers.

(c)

In all cases mentioned in paragraphs (a) and (b), the

contracting authorities shall inform the Director of the matters

referred to therein.

(3) The contracting authority shall, within fifteen days of the

date on which the request is received by a party concerned inform

(a)

any unsuccessful candidate of the reasons for

rejection of its application;

(b) any unsuccessful tenderer of the reasons for the

rejection of his tender, including, for the cases referred to in

regulations 45(3) and (4), the reasons for its decision of non-

equivalence or its decision that the works, supplies or services

do not meet the performance or functional requirement;

(c)

any tenderer who has submitted an admissible

tender of the characteristics and relative advantages of the

tender selected as well as the name of the successful tenderer or

the parties to the framework agreement

Provided that contracting authorities may decide to

withhold certain information on the contract award, referred to

in this regulation, where release of such information would

impede law enforcement or otherwise be contrary to the public

interest or would prejudice the legitimate commercial interests

of economic operators, public or private, or might prejudice fair

competition between them.

(4) For every contract, framework agreement and every

establishment of a dynamic purchasing system, the contracting

authority shall take appropriate steps to document the progress of

award procedures and shall draw up a written report which shall

include at least the following and shall be forwarded to the Director,

and to the Commission if the Commission so requests

(a)

the name and address of the contracting authority,

the subject-matter and value of the contract, framework

agreement or dynamic purchasing system;

(b) the names of the successful candidates or tenderers

and the reasons for their selection;

(c)

the names of the candidates or tenderers rejected and

the reasons for their rejection;

(d) the reason for rejection of tenders found to be

abnormally low;

(e)

the name of the successful tenderer and the reasons

why his tender was selected and, if known, any share of the

contract or the framework agreement which the successful

tenderer may intend to subcontract to third parties;

(f)

if the contracting authority has used negotiated

procedures, the circumstances which justify the use of such

procedures;

(g) as far as the competitive dialogue is concerned, the

circumstances as laid down in regulation 47 justifying the use of

this procedure;

(h) if necessary, the reasons why the contracting

authority has decided not to award a contract or framework

agreement or to establish a dynamic purchasing system.

(1) All communication and information exchange may

be by post, by fax, by electronic means in accordance with

subregulations (4) and (5), by telephone in the cases and

circumstances referred to in subregulation (6), or by a combination of

those means, according to the choice of the contracting authority.

(2) The means of communication chosen must be generally

available and thus not restrict economic operators’ access to the

tendering procedure.

(3) Communication and the exchange and storage of

information shall be carried out in such a way as to ensure that the

integrity of data and the confidentiality of tenders and requests to

participate are preserved, and that the contracting authorities examine

the content of tenders and requests to participate only after the time

limit set for submitting them has expired.

(4) The tools to be used for communicating by electronic

means, as well as their technical characteristics, must be non-

discriminatory, generally available and interoperable with the

information and communication technology products in general use.

(5) The following rules are applicable to devices for the

electronic transmission and receipt of tenders and to devices for the

electronic receipt of requests to participate

(a) information regarding the specifications necessary

for the electronic submission of tenders and requests to

participate, including encryption shall be available to interested

parties. Moreover, the devices for the electronic receipt of

tenders and requests to participate shall conform to the

requirements of Schedule 11;

(b) Member States may, in compliance with Article 5 of

Directive 1999/93/EC, require that electronic tenders be

accompanied by an advanced electronic signature in conformity

with paragraph 1 thereof;

(c)

Member States may introduce or maintain voluntary

accreditation schemes aiming at enhanced levels of certification

service provision for these devices;

(d) tenderers or candidates shall undertake to submit,

before expiry of the time limit laid down for submission of

tenders or requests to participate, the documents, certificates

and declarations referred to in regulations 49 to 52 and

regulation 35 if they do not exist in electronic format.

(6) The following rules shall apply to the transmission of

requests to participate

(a) requests to participate in procedures for the award of

public contracts may be made in writing or by telephone;

(b) where requests to participate are made by telephone,

a written confirmation must be sent before expiry of the time

limit set for their receipt;

(c)

contracting authorities may require that requests for

participation made by fax must be confirmed by post or by

electronic means, where this is necessary for the purposes of

legal proof. Any such requirement, together with the time limit

for sending confirmation by post or electronic means, must be

stated by the contracting authority in the contract notice.

(1) (a) Contracting authorities shall set out technical Technical

specifications for public contracts and these shall be included in the specifications.

contract documents. Whenever possible these technical specifications

should be defined so as to take into account accessibility criteria for

people with disabilities or design for all users.

(b) Technical specifications shall afford equal access for

tenderers and not have the effect of creating unjustified obstacles to

the opening of public procurement to competition.

(2) Without prejudice to the legally binding technical rules in

Malta, and insofar as these are compatible with Community law, the

technical specifications shall be formulated

(a)

either by reference to technical specifications as

defined in subregulation (7) and, in order of preference, to

national standards transposing European Standards, European

Technical Approvals, common technical specifications,

international standards, other technical reference systems

established by the European standardisation bodies or, when

these do not exist, to national standards, national technical

approvals or national technical specifications relating to the

design, calculation and execution of the works and use of the

products. Each reference shall be accompanied with the words

"or equivalent";

(b) or in terms of performance or functional

requirements. The latter may include environmental

characteristics. However, such parameters must be sufficiently

precise to allow tenderers to determine the subject-matter of the

contract and to allow contracting authorities to award the

contract;

(c)

or in terms of performance or functional

requirements as mentioned in paragraph (b), with reference to

specifications mentioned in paragraph (a) as a means of

presuming conformity with such performance or functional

requirements;

(d) or by referring to the specifications mentioned in

paragraph (a) for certain characteristics, and by referring to the

performance or functional requirements mentioned in paragraph

(b) for other characteristics.

(3) Where a contracting authority makes use of the option of

referring to the specifications in subregulation (2)(a), it cannot reject

a tender on the grounds that the products and services tendered for do

not comply with the specifications to which it has referred, once the

tenderer proves in his tender to the satisfaction of the contracting

authority, by whatever appropriate means, that the solutions which he

proposes satisfy in an equivalent manner the requirements defined by

the technical specifications. An appropriate means might be

constituted by a technical dossier of the manufacturer or a test report

from a recognised body.

(4) Where a contracting authority uses the option laid down in

subregulation (2) to prescribe in terms of performance or functional

requirements, it may not reject a tender for works, products or

services which comply with a national standard transposing a

European Standard, with a European Technical approval, a common

technical specification, an international standard or a technical

reference system established by a European standardisation body, if

these specifications address the performance or functional

requirements which it has laid down. In his tender the tenderer must

prove to the satisfaction of the contracting authority and by any

appropriate means that the work, product or service in compliance

with the standard meets the performance or functional requirements

of the contracting authority. An appropriate means might be

constituted by a technical dossier of the manufacturer or a test report

from a recognised body.

(5) Where contracting authorities lay down environmental

characteristics in terms of performance or functional requirements as

referred to in subregulation (2)(b) hereof they may use the detailed

specifications, or if necessary, parts thereof, as defined by European

or (multi-)national eco-labels, or by any other eco-label, provided

that

(i)

those specifications are appropriate to define the

characteristics of the supplies or services that are the object of

the contract;

(ii) the requirements for the label are drawn up on the

basis of scientific information;

(iii) the eco-labels are adopted using a procedure in

which all stakeholders, such as government bodies, consumers,

manufacturers, distributors and environmental organisations can

participate; and

(iv)

they are accessible to all interested parties

Provided that contracting authorities may indicate that the

products and services bearing the eco-labels are presumed to comply

with the technical specifications laid down in the contract documents,

however they must accept any other appropriate means of proof, such

as a technical dossier of the manufacturer or a test report from a

recognised body.

(6) Unless such specifications are justified by the subject-

matter of the contract, contracting authorities shall not introduce into

the contractual clauses relating to a given contract technical

specifications which mention products of a specific make or source or

of a particular process or to trade marks, patents, types, or of a

specific origin or production with the effect of favouring or

eliminating certain undertakings or certain products. Such reference

shall be permitted on an exceptional basis, where a sufficiently

precise and intelligible description of the subject-matter of the

contract pursuant to subregulations (2) and (3) hereof is not possible.

Such reference shall be accompanied by the words "or equivalent".

(7) For the purposes of this regulation the following terms

mean

(a)

''technical specifications'', in the case of public

works contracts means the totality of the technical prescriptions

contained in particular in the tender documents, defining the

characteristics required of a work, material, product or supply,

which permits a work, a material, a product or a supply to be

described in a manner such that it fulfils the use for which it is

intended by the contracting authority. These characteristics shall

include levels of environmental performance, design for all

requirements (including accessibility for disabled persons) and

conformity assessments, performance, safety or dimensions,

including

procedures

concerning

quality

assurance,

terminology, symbols, testing and test methods, packaging,

marking and labelling and production processes and methods.

They shall also include rules relating to design and costing, the

test, inspection and acceptances conditions for works and

methods or techniques of construction and all other technical

conditions which the contracting authority is in a position to

prescribe, under general or specific regulations, in relation to

the finished works and to the materials or parts which they

involve;

(b) "technical specifications", in the case of public

supply or service contracts, means a specification in a document

defining the required characteristics of a product or a service,

such as quality levels, environmental performance levels,

design for all requirements (including accessibility for disabled

persons) and conformity assessment, performance, use of

product, safety or dimensions, including requirements relevant

to the product as regards the name under which the product is

sold, terminology, symbols, testing and test methods,

packaging, marking and labelling, user instructions, production

processes and methods and conformity assessment procedures;

(c)

''standard'' means a technical specification approved

by a recognized standardizing body, for repeated or continuous

application compliance with which is not compulsory and which

falls into one of the following categories

(i) International standard - a standard adopted by

an international standards organisation and made available

to the general public;

(ii) European standard - a standard adopted by a

European standards organisation and made available to the

general public;

(iii) National standard - a standard adopted by a

national standards organisation and made available to the

general public;

(d) ''European technical approval'' means a favourable

technical assessment of the fitness for use of a product for a

particular purpose, based on fulfilment of the essential

requirements for building works, by means of the inherent

characteristics of the product and the defined conditions of

application and use. European Technical Approvals are issued

by an approval body designated for this purpose by the Member

State;

(e)

''common technical specification'' means a technical

specification laid down in accordance with a procedure

recognized by the Member States to ensure uniform application

in all Member States which has been published in the Official

Journal of the European Union;

(f)

''technical reference" means any product produced

by European standardisation bodies, other than official

standards, according to procedures adopted for the development

of market needs;

(g) "recognised bodies" means, within the context of

this regulation, test and calibration laboratories, and

certification and inspection bodies, which comply with

applicable European Standards.

(1) Where the criterion for the award of the contract is Variants.

that of the most economically advantageous tender, contracting

authorities may authorise tenderers to submit variants.

(2) The contracting authorities shall state in the contract

documents the minimum specifications to be respected by the variants

and any specific requirements for their presentation. They shall

indicate in the tender EU contract notice if variants are not permitted.

Only variants meeting the minimum specifications laid down by the

contracting authorities shall be taken into consideration.

(3) In the procedures for awarding public supply or services

contracts, contracting authorities which have authorised variants may

not reject a variant on the sole ground that it would, if successful, lead

to either a service contract rather than a public supply contract or a

supply contract rather than a public service contract.

(1) In case of particularly complex contracts, where Competitive

contracting authorities consider that the use of the open or restricted dialogue.

procedure will not allow the award of the contract, the latter may

make use of the competitive dialogue in accordance with this

regulation

Provided that a public contract shall be awarded on the

sole basis of the award criterion for the most economically

advantageous tender.

(2) Contracting authorities shall publish a contract notice

setting out their needs and requirements, which they shall define in

that notice and, or in a descriptive document.

(3) (a)

Contracting authorities shall open, with the

candidates selected in accordance with the relevant provisions of

regulations 27, 35, 49, 50, 51 and 52, a dialogue the aim of which

shall be to identify and define the means best suited to satisfying their

needs. They may discuss all aspects of the contract with the chosen

candidates during this dialogue.

(b) During the dialogue, contracting authorities shall

ensure equality of treatment among all tenderers. In particular, they

shall not provide information in a discriminatory manner which may

give some tenderers an advantage over others.

(c)

Contracting authorities may not reveal to the other

participants solutions proposed or other confidential information

communicated by a candidate participating in the dialogue without

the candidate’s agreement.

(4) Contracting authorities may provide for the procedure to

take place in successive stages in order to reduce the number of

solutions to be discussed during the dialogue stage by applying the

award criteria in the contract notice or the descriptive document. The

contract notice or the descriptive document shall indicate that

recourse may be had to this option.

(5) The contracting authority shall continue such dialogue

until it can identify the solution or solutions, if necessary after

comparing them, which are capable of meeting its needs.

(6) Having declared that the dialogue is concluded and having

so informed the participants, contracting authorities shall ask them to

submit their final tenders on the basis of the solution or solutions

presented and specified during the dialogue. These tenders shall

contain all elements required and necessary for the performance of

the project. These tenders may be clarified, specified and fine-tuned

at the request of the contracting authority. However, such

clarification, specification, fine-tuning or additional information may

not involve changes to the basic features of the tender or the call for

tender, variations which are likely to distort competition or have a

discriminatory effect.

(7) Contracting authorities shall assess the tenders received on

the basis of the award criteria laid down in the contract notice or the

descriptive document and shall choose the most economically

advantageous tender in accordance with regulation 27(3), (4) and (5).

At the request of the contracting authority, the tenderer

identified as having submitted the most economically advantageous

tender may be asked to clarify aspects of the tender or confirm

commitments contained in the tender provided this does not have the

effect of modifying substantial aspects of the tender or of the call for

tender and does not risk distorting competition or causing

discrimination.

(8) The contracting authorities may specify prices or payments

to the participants in the dialogue.

(9) (a)

In all instances where the competitive dialogue in

accordance with this regulation is to be adopted, the matter may be

referred by the Director of Contracts or the contracting authority to

the Minister who shall appoint an ad hoc committee with the

responsibility of conducting the competitive dialogue, in accordance

with this regulation, on behalf of the contracting authority.

(b) The ad hoc committee shall be composed of such

number of persons as the Minister may deem appropriate after having

due regard to the complexity of the particular contract.

(c)

The ad hoc committee shall ensure that the

provisions of this regulation are duly observed, and shall identity the

tenderer who submitted the most economically advantageous tender.

(d) The ad hoc committee shall operate under the

supervision of the Director of Contracts.

(1) Contracting authorities shall make known, by means EU notices.

of an EU prior information notice published by the Commission or by

themselves on their "buyer profile" as described in point 2(b) of

Annex II in Schedule 9

(a)

where supplies are concerned, the estimated total

value of the contracts or the framework agreements by product

area which they intend to award over the following twelve

months, where the total estimated value, taking into account

regulations 11 and 15, is equal to or greater than Lm300,000.

The product area shall be established by the contracting

authorities by reference to the CPV nomenclature;

(b) where services are concerned, the estimated total

value of the contracts or the framework agreements in each of

the categories of services listed in Schedule 6 which they intend

to award over the following twelve months, where such

estimated value, taking into account regulations 11 and 15, is

equal to or greater than Lm300,000;

(c)

where works are concerned, the essential

characteristics of the contracts or the framework agreements

which they intend to award, the estimated value of which is

equal to or greater than the threshold specified in regulation 11,

taking into account regulation15.

The notices referred to in paragraphs (a) and (b) hereof shall be

sent to the Commission or published on the buyer profile as soon as

possible after the beginning of the budgetary year.

The notice referred to in paragraph (c) hereof shall be sent to the

Commission or published on the buyer profile as soon as possible

after the decision approving the planning of the works contracts or the

framework agreements that the contracting authorities intend to

award.

Contracting authorities who publish a prior information notice

on their buyer profiles shall send the Commission, electronically, a

notice of the publication of the prior information notice on a buyer

profile, in accordance with the format and detailed procedures for

sending notices indicated in point 3 of Annex II in Schedule 9.

Publication of the notices referred to in paragraphs (a), (b) and

(c) shall be compulsory only where the contracting authorities take

the option of shortening time-limits for the receipt of tenders as laid

down in regulation 40(3).

This subregulation shall not apply to negotiated procedures

without the prior publication of a contract notice.

(2) Where contracting authorities intend to award a public

contract or a framework agreement by open, restricted or, under the

conditions laid down in regulation 38, by negotiated procedure with

the publication of a contract notice or, under the conditions laid down

in regulation 47, a competitive dialogue, they shall make known their

intention by means of an EU contract notice.

(3) (a)

Contracting authorities which wish to set up a

dynamic purchasing system shall make known their intention by

means of a contract notice.

(b) Contracting authorities wishing to award a contract

based on a dynamic purchasing system shall make known their

intention by means of a simplified contract notice.

(4) (a)

Contracting authorities which have awarded a public

contract or concluded a framework agreement shall send a notice of

the results of the award procedure no later than forty-eight days after

the award of the contract or the conclusion of the framework

agreement.

(b) In the case of framework agreements concluded in

accordance with regulation 25 the contracting authorities are not

bound to send a notice of the results of the award procedure for each

contract based on that agreement.

(c)

Contracting authorities shall send a notice of the

result of the award of contracts based on a dynamic purchasing

system within 48 days of the award of each contract. They may,

however, group such notices on a quarterly basis. In that case, they

shall send the grouped notices within forty-eight days of the end of

each quarter.

(d) In the case of public service contracts listed in

Schedule 7, the contracting authorities shall indicate in the notice

whether they agree to its publication.

(e)

Certain information on the contract award or the

conclusion of the framework agreement may be withheld from

publication where release of such information would impede law

enforcement or otherwise be contrary to the public interest, would

harm the legitimate commercial interests of economic operators,

public or private, or might prejudice fair competition between them.

(5) Notices shall include the information mentioned in Annex

I A in Schedule 9 and, where appropriate, any other information

deemed useful by the contracting authority in the format of standard

forms adopted by the Commission.

(6) The contracting authorities shall send the contract notices

to the Commission either by electronic means in accordance with the

format and procedures for transmission indicated in Annex II of

Schedule 9, paragraph 3, or by other means. In the event of recourse

to the accelerated procedure set out in regulation 40(7), notices must

be sent either by telefax or by electronic means, in accordance with

the format and procedures for transmission indicated in Annex II of

Schedule 9, paragraph 3. Notices shall be published in accordance

with the technical characteristics for publication set out in point 1(a)

and (b) of Annex II of Schedule 9.

(7) Contract notices shall be published in full in an official

language of the Community as chosen by the contracting authority. A

summary of the contract notice shall be published in the other

languages of the Community.

(8) Notices drawn up and transmitted by electronic means in

accordance with the format and procedures for transmission indicated

in Annex II of Schedule 9, paragraph 3 shall be published no later

than five days after they are sent. Notices which are not transmitted

by electronic means in accordance with the format and procedures for

transmission indicated in Annex II of Schedule 9, paragraph 3 shall

be published not later than twelve days after their dispatch or in the

case of the accelerated procedure referred to in regulation 40(7), not

later than five days after they are sent.

(9) Notices shall not be published in the Gazette or in the press

before the date of dispatch of the contract notices to the Commission.

They shall state the date of dispatch of the contract notice and shall

not contain information other than that dispatched to the Commission

or published on a buyer profile in accordance with subregulation (1).

(10) The contracting authorities must be able to supply proof of

the date of dispatch. Confirmation by the Commission of the

publication of the notice sent shall constitute proof of publication.

(11) The content of contract notices not sent by electronic

means in accordance with the format and procedures for transmission

indicated in Annex II of Schedule 9, paragraph 3 shall be limited to

approximately six hundred and fifty words.

(12) Contracting authorities may arrange for the publication in

accordance with this regulation notices announcing public contracts

which are not subject to the publication requirement laid down herein.

(1) Any economic operator may be excluded from

participating in a public contract where the economic operator

(a)

is bankrupt or is being wound up, or whose affairs

are being administered by the court, who has entered into an

arrangement with creditors or who has suspended business

activities or who is in any analogous situation arising from a

similar procedure under national laws and regulations;

(b) is the subject of proceedings for a declaration of

bankruptcy, for an order for compulsory winding up or

administration by the court or for an arrangement with creditors

or of any other similar proceedings under national laws or

regulations;

(c)

has been convicted of an offence concerning his

professional conduct by a judgement which has the force of res

judicata;

(d) has been declared guilty of grave professional

misconduct proven by any means which the contracting

authorities can demonstrate;

(e)

has not fulfilled obligations relating to the payment

of social security contributions in accordance with the law of

Malta or the country in which he is established;

(f)

has not fulfilled obligations relating to the payment

of taxes in accordance with the legal provisions of Malta or the

country in which he is established;

(g) is guilty of serious misrepresentation in supplying

the information required under these regulations or has not

supplied such information.

(2) Where the contracting authority requires proof from the

candidate or tenderer that none of the cases quoted in subregulation

(1)(a), (b), (c), (e) and (f) applies to him, it shall accept as sufficient

evidence, relevant certification issued by a competent judicial or

administrative body in the country of origin or the country whence

that person comes showing that these requirements have been met.

(3) Where the certification referred to in subregulation (2) is

not available, it may be replaced by a declaration on oath or by a

solemn declaration made by the person concerned before a

Commissioner for Oaths in Malta or before a judicial or

administrative authority, a notary or a competent professional or trade

body, in that person’s country of residence.

(4) Any candidate or tenderer who has been the subject of a

conviction by final judgment of which the contracting authority is

aware for one or more of the reasons listed below, shall be excluded

from participation in a public contract

(a)

participation in a criminal organisation, as defined

in Article 2(1) of Council Joint Action 98/733/JHA;

(b) corruption, as defined in Article 3 of the Council

Act of 26 May 1997 and Article 3(1) of Council Joint Action

98/742/JHA respectively;

(c)

fraud within the meaning of Article 1 of the

Convention relating to the protection of the financial interests of

the European Communities;

(d) money laundering, as defined in Article 1 of Council

Directive 91/308/EEC of 10 June 1991 on prevention of the use

of the financial system for the purpose of money laundering

Provided that, the Director may authorise a derogation

from the application of this subregulation for overriding requirements

in the general interest.

For the purposes of this subregulation, the contracting

authorities shall, where appropriate, ask candidates or tenderers to

supply the documents referred to in subregulations (2) and (3) and

may, where they have doubts concerning the personal situation of

such candidates or tenderers, also apply to the competent authorities

to obtain any information they consider necessary on the personal

situation of the candidates or tenderers concerned.

Where the information concerns a candidate or tenderer

established in a Member State other than Malta, the contracting

authority may seek the cooperation of the competent authorities.

Having regard for the national laws of the Member State where the

candidates or tenderers are established, such requests shall relate to

legal and, or natural persons, including, if appropriate, company

directors and any person having powers of representation, decision or

control in respect of the candidate or tenderer.

(1) Proof of economic operator’s economic and

financial standing may, as a general rule, be furnished inter alia, by

one or more of the following

(a)

appropriate statements from banks, or where

appropriate, evidence of relevant professional indemnity

insurance;

(b) the presentation of balance-sheets or extracts

therefrom, where publication of the balance sheets is required

under company law in the country in which the economic

operator is established;

(c)

a statement of the economic operator’s overall

turnover and, where appropriate its turnover in respect of the

products, works or services to which the contract relates for the

three previous financial years depending on the date on which

the economic operator was set up or the economic operator

started trading, as far as the information on these turnovers is

available.

(2) An economic operator may, where appropriate and for a

particular contract, rely on the capacities of other entities, regardless

of the legal nature of the links which it has with them. It must in that

case prove to the contracting authority that it will have at its disposal

the resources necessary, for example, by producing an economic

operator by those entities to that effect.

(3) Under the same conditions, a group of economic operators

as referred to in regulation 31 may rely on the capabilities of

participants in the group or of other entities.

(4) Contracting authorities shall specify in the contract notice

or in the invitation to tender, which references mentioned in

subregulation (1) have been chosen and which must be provided, and

of any others it deems fit.

(5) In the event that a candidate or tenderer is, for any valid

reason, unable to provide the references requested by a contracting

authority, its economic and financial standing may be substantiated

by any other document which the contracting authority considers

appropriate.

(1) The technical and, or professional abilities of the Evidence of

economic operators shall be assessed and examined in accordance technical

capacity.

with subregulation (2).

(2) Evidence of the economic operators’ technical abilities

may be furnished by one or more of the following means according to

the nature, quantity or importance, and use of the works, supplies or

services

(a)

(i) a list of the works carried out over the past five

years, accompanied by certificates of satisfactory execution for

the most important works. These certificates shall indicate the

value, date and site of the works and shall specify whether they

were carried out according to the rules of the trade and properly

completed. Where appropriate, the competent authority shall

submit these certificates to the contracting authority direct;

(ii) a list of the principal deliveries effected or the

main services provided in the past three years, with the sums,

dates and recipients, whether public or private, involved.

Evidence of delivery and services provided shall be given

-

where the recipient was a contracting authority,

in the form of certificates issued or countersigned by

the competent authority;

-

where the recipient was a private purchaser, by

the purchaser's certification or, failing this, simply

by a declaration by the economic operator;

(b) an indication of the technicians or technical bodies

involved, whether or not belonging directly to the economic

operator's undertaking, especially those responsible for quality

control and, in the case of public works contracts, those upon

whom the contractor can call in order to carry out the work;

(c)

a description of the technical facilities and measures

used by the supplier or service provider for ensuring quality and

the economic operator's study and research facilities;

(d) where the products or services to be supplied are

complex or, exceptionally, are required for a special purpose, a

check carried out by the contracting authorities or on their

behalf by a competent official body of the country in which the

supplier or service provider is established, subject to that body's

agreement, on the production capacities of the supplier or the

technical capacity of the service provider and, if necessary, on

the means of study and research which are available to it and the

quality control measures it will operate;

(e)

the educational and professional qualifications of

the service provider or contractor and, or those of the economic

operator's managerial staff and, in particular, those of the person

or persons responsible for providing the services or managing

the work;

(f)

for public works contracts and public services

contracts, and only in appropriate cases, an indication of the

environmental management measures that the economic

operator will be able to apply when performing the contract

Provided that should contracting authorities require

the production of certificates drawn up by independent bodies

attesting the compliance of the economic operator with certain

environmental management standards, they shall refer to the

Community Eco-Management and Audit Scheme (EMAS) or to

environmental management standards based on the relevant

European or international standards certified by bodies

conforming to Community law or the relevant European or

international standards concerning certification. They shall

recognise equivalent certificates from bodies established in

other Member States. They shall also accept other evidence of

equivalent environmental management measures from

economic operators;

(g) a statement of the average annual manpower of the

service provider or contractor and the number of managerial

staff for the last three years;

(h) a statement of the tools, plant or technical

equipment available to the service provider or contractor for

carrying out the contract;

(i)

an indication of the proportion of the contract which

the services provider intends possibly to subcontract;

(j)

with regard to the products to be supplied

(i) samples, descriptions and, or photographs, the

authenticity of which must be certified if the contracting

authority so requests;

(ii) certificates drawn up by official quality control

institutes or agencies of recognised competence attesting

the conformity of products clearly identified by references

to specifications or standards.

(3) An economic operator may, where appropriate and for a

particular contract, rely on the capacities of other entities, regardless

of the legal nature of the links which it has with them. It must in that

case prove to the contracting authority that it will have at its disposal

the resources necessary for the execution of the contract, for example,

by producing an undertaking by those entities to place the necessary

resources at the disposal of the economic operator.

(4) In so far as economic operators for a public contract either

have to possess a particular authorization or to be members of a

particular organization in their home country in order to be able to

perform the service, supply or work concerned, the contracting

authority may require them to prove that they hold such authorization

or membership.

(5) Any economic operator may be requested to prove his

enrolment, as prescribed in his country of establishment, in one of the

professional or trade registers or to provide a declaration or certificate

as described in subregulation (10).

(6) Under the same conditions a group of economic operators

as referred to in regulation 31 may rely on the abilities of participants

in the group or in other entities.

(7) In procedures for awarding public contracts having as their

object supplies requiring siting or installation work, the provision of

services and, or the execution of works, the ability of economic

operators to provide the service or to execute the installation or the

work may be evaluated in particular with regard to their skills,

efficiency, experience and reliability.

(8) The contracting authority shall specify, in the notice or in

the invitation to tender, which references under subregulations (2)

and (3) it wishes to receive.

(9) The extent of the information referred to in regulation 50

and in subregulations (1), (2), (3), (4), (5) and (6) must be confined to

the subject matter of the public contract.

(10) The contracting authority shall take into consideration the

legitimate interests of candidates and tenderers as regards the

protection of their technical or trade secrets.

(11) The Department of Contracts shall designate the

authorities and bodies competent to issue the documents, certificates

or declarations referred to in this regulation and shall forthwith

inform the Commission and other Member States thereof.

(12) A list of the relevant professional and trade registers and

authorities from which the relevant declarations or certificates may be

obtained shall be kept by the Department of Contracts and shall be

made available to the public.

(1) Where contracting authorities require the production

of certificates drawn up by independent bodies attesting to the

compliance of the economic operator with certain quality assurance

standards, contracting authorities shall refer to quality assurance

systems based on the relevant European standards series certified by

bodies conforming to the European standards series concerning

certification. They shall recognise equivalent certificates from bodies

established in other Member States. They shall also accept other

evidence of equivalent quality assurance measures from economic

operators.

(2) Contracting authorities may invite the candidates or

tenderers to supplement or clarify the certificates and documents

submitted in terms of subregulation (1) and regulation 49.

(1) The Director of Contracts shall prepare and forward Report to

to the Commission a statistical report on the contracts awarded by Commission.

contracting authorities listed in Schedule 1 during the preceding year,

not later than the 31st October of each year.

(2) The statistical report shall detail at least

(a)

the estimated overall value of contracts awarded

below the thresholds by each contracting authority or category

of contracting authorities, and

(b) the number and value of contracts awarded above

the thresholds by each contracting authority or category of

contracting authorities, subdivided as far as possible by

procedure, category of works, product or service using the CPV

nomenclatures, and the nationality of the tenderer to whom the

contract has been awarded and, in the case of negotiated

procedures, subdivided in accordance with regulation 38 and the

number and value of contracts awarded to each Member State

and to non-Member State countries.

PART VI

Types of Contract

Section A

Public services contracts

(1) Public services contracts and the organisation of Scope.

design contests, where the estimated value of the contract or the

design contest at the dispatch of the EU contract notice or equivalent

time if such a notice is not required is equal to or exceeds the

threshold value, shall be awarded in terms of these regulations, save

for Parts II, III, VI Section B, VI Section C and VII which shall not

apply thereto.

(2) This Part shall also apply to public service contracts, the

estimated value of which is equal to or exceeds the threshold value of

Lm63,000 net of VAT, issued in connection with a subsidised public

works contract in terms of regulation 69(2), by an authority not being

a contracting authority, where fifty per cent or more of the value of

the public service contract is subsidised directly by a contracting

authority. Contracting authorities awarding such subsidies shall

ensure compliance with this regulation both when they themselves

award the contract for and on behalf of those other entities and where

the public contract is awarded by one or more entitles other than

themselves.

(3) This Part shall also apply to public contracts intended to

cover both works listed in Schedule 5 and services listed in Schedules

6 and 7, if the value of the services in question exceeds that of the

works covered by the contract.

(4) (a)

Public contracts which have as their object the

services listed in Schedule 6 shall be awarded in accordance with

these regulations.

(b) Public contracts which have as their object the

services listed in Schedule 7 shall be subject solely to regulations 45

and 48(4).

(c)

Contracts which have as their object services listed

both in Schedule 6 and in Schedule 7 shall be awarded in accordance

with these regulations where the value of the services listed in

Schedule 6 is greater than the value of the services listed in Schedule

7. In other cases, contracts shall be awarded in accordance with

regulations 45 and 48(4).

Where contracting authorities require the production of

certificates drawn up by independent bodies for attesting conformity

of the service with certain quality assurance standards, they shall

refer to quality assurance systems based on the relevant EN 29 000

European Standards series certified by bodies conforming to the EN

45 000 European Standards series. They shall recognize equivalent

certificates from bodies established in other Member States. They

shall also accept other evidence of equivalent quality assurance

measures from service providers who have no access to such

certificates, or no possibility of obtaining them within the relevant

time limits.

(1) Where a public service contract is to be awarded in

respect of a service classified under Schedule 6, the contracting

authority shall apply all the relevant provisions of these regulations

applicable to public contracts whose estimated value is equal to or

exceeds the threshold.

(2) A contracting authority shall observe the provisions of

regulation 45 in awarding a public service contract in respect of a

service classified under Schedule 7. It shall dispatch an EU award

notice to the Office for Official Publications and it shall indicate in

the EU notice whether or not it intends it to be published.

(3) Where a public service contract is to be awarded in respect

of services classified under Schedule 6 and services classified under

Schedule 7 it shall be classified as being for services classified under

Schedule 6 if the estimated value of the services classified under

Schedule 6 exceeds the estimated value of the services classified

under Schedule 7.

(1) The rules for the organisation of design contests as Design contests.

set out herein shall be communicated to those interested in

participating in the contest.

(2) The admission of participants to design contests shall not

be limited

(a)

by reference to Malta or part of Malta;

(b) on the grounds that the participants are required to

be either natural or legal persons.

(3) Design contests shall be organised by

(a)

contracting

authorities

which

are

central

government authorities, starting from a threshold equal to or

greater than Lm63,000;

(b) contracting authorities which are not central

government authorities, starting from a threshold equal to or

greater than Lm97,000;

(c)

by all the contracting authorities, starting from a

threshold equal to or greater than Lm97,000 where contests

concern services in category 8 of Schedule 6, category 5

telecommunications services, the positions of which in the CPV

are equivalent to reference Nos CPC 7524, 7525 and 7526 and,

or services listed in Schedule 7.

(4) This regulation shall apply to

(a)

design contests organised as part of a procedure

leading to the award of a public service contract;

(b) design contests with prizes and, or payments to

participants.

In the cases referred to in paragraph (a) the threshold refers to

the estimated value net of VAT of the public services contract,

including any possible prizes and, or payments to participants. In the

cases referred to in paragraph (b), the threshold refers to the total

amount of the prizes and payments, including the estimated value net

of VAT of the public services contract which might subsequently be

concluded under regulation 59(c) if the contracting authority does not

exclude such an award in the contest notice.

(5) This regulation shall not apply to

(a)

design contests within the meaning of the Public

Procurement Regulations which are organised by contracting

authorities exercising one or more of the activities referred to in

regulations 3 to 7 of the Public Procurement Regulations and

are organised for the pursuit of such activities; nor shall it apply

to contests excluded from the scope of this regulation

Provided that this regulation shall continue to apply

to design contests awarded by contracting authorities carrying

out one or more of the activities referred to in Article 6 of

Directive 2004/17/EC and awarded for those activities, insofar

as the option referred to in the second subparagraph of Article

71 thereof to defer its application is applied;

(b) contests which are organised in the same cases as

those referred to in regulation 16 hereof for public service

contracts.

(6) (a)

Contracting authorities which wish to carry out a

design contest shall make known their intention by means of a contest

notice.

(b) Contracting authorities which have held a design

contest shall send a notice of the results of the contest in accordance

with regulation 48 and must be able to prove the date of dispatch.

(c)

Where the release of information on the outcome of

the contest would impede law enforcement, be contrary to the public

interest, prejudice the legitimate commercial interests of a particular

enterprise, whether public or private, or might prejudice fair

competition between service providers, such information need not be

published.

(7) (a)

The notices referred to in subregulation (6) shall

contain the information referred to in Annex I D of Schedule 9 in

accordance with the standard model notices adopted by the

Commission.

(b) The notices shall be published in accordance with

regulation 48(6) to (11).

(8) (a)

Regulation 44(1), (2) and (4) shall apply to all

communications relating to contests.

(b) Communications, exchanges and the storage of

information shall be such as to ensure that the integrity and the

confidentiality of all information communicated by the participants in

a contest are preserved and that the jury ascertains the contents of

plans and projects only after the expiry of the time limit for their

submission.

(c)

The following rules shall apply to devices for the

electronic receipt of plans and projects

(i) the information relating to the specifications

which is necessary for the presentation of plans and

projects by electronic means, including encryption, shall be

available to the parties concerned. In addition, the devices

for the electronic receipt of plans and projects shall comply

with the requirements of Schedule 11;

(ii) contracting authorities may introduce or

maintain voluntary arrangements for accreditation intended

to improve the level of the certification service provided

for such devices.

(9) Where design contests are restricted to a limited number of

participants, the contracting authorities shall lay down clear and non-

discriminatory selection criteria. In any event, the number of

candidates invited to participate shall be sufficient to ensure genuine

competition.

(10) The panel shall be composed exclusively of natural

persons who are independent of participants in the contest. Where a

particular professional qualification is required from participants in a

contest, at least a third of the members of the panel shall have that

qualification or an equivalent qualification.

(11) (a)

The panel shall be autonomous in its decisions or

opinions.

(b) It shall examine the plans and projects submitted by

the candidates anonymously and solely on the basis of the criteria

indicated in the contest notice.

(c)

It shall record its ranking of projects in a report,

signed by its members, made according to the merits of each project,

together with its remarks and any points which may need

clarification.

(d) Anonymity must be observed until the panel has

reached its opinion or decision.

(e)

Candidates may be invited, if need be, to answer

questions which the panel has recorded in the minutes to clarify any

aspects of the projects.

(f)

Complete minutes shall be drawn up of the dialogue

between panel members and candidates.

(1) Pursuant to regulation 38(1), a contracting authority

may award public service contracts by negotiated procedure, after

prior publication of an EU contract notice

(a)

in the event of tenders in response to an open or

restricted procedure which are irregular or unacceptable for

reasons which are consistent with these regulations, insofar as

the original terms of the contract are not substantially altered. In

such cases a contracting authority may refrain from publishing

an EU contract notice where it includes in the negotiated

procedure all and only the tenderers who satisfy the criteria of

regulations 45 and 49 to 52 and who during the preceding open

or restricted procedure have submitted tenders in accordance

with the formal requirements of the tendering procedure;

(b) in exceptional cases, when the nature of the services

or the risks involved do not permit prior overall pricing;

(c)

when the nature of the services to be procured, in

particular in the case of intellectual services and services falling

within category 6 of Schedule 6, is such that contract

specifications cannot be established with sufficient precision to

permit the award of the contract by selecting the best tender

according to the rules governing open or restricted procedures.

(2) In the cases referred to in subregulation (1), contracting

authorities shall negotiate with tenderers the tenders submitted by

them in order to adapt them to the requirements which they have set

in the contract notice, the specifications and additional documents, if

any, and to seek out the best tender in accordance with regulation 27.

(3) During the negotiations, contracting authorities shall

ensure the equal treatment of all tenderers. In particular they shall not

provide information in a discriminatory manner which may give some

tenderers an advantage over others.

(4) Contracting authorities may provide for the negotiated

procedure to take place in successive stages in order to reduce the

number of tenders to be negotiated by applying the award criteria in

the contract notice or the specifications. The contract notice or the

specifications shall indicate whether recourse has been had to this

option.

A contracting authority may award public service contracts Without prior

by negotiated procedure without prior publication of an EU contract publication

an EU contract

notice

notice.

(a)

when no tenders or no suitable tenders or no

applications have been submitted in response to an open or

restricted procedure, provided that the initial conditions of the

contract are not substantially altered and on condition that a

report is communicated to the Commission at its request;

(b) when, for technical or artistic reasons, or for reasons

connected with the protection of exclusive rights, the services

may be provided only by a particular economic operator;

(c)

where the contract concerned is awarded subsequent

to a design contest and must be awarded to the successful

candidate or to one of the successful candidates in which case

they shall be invited to participate in the negotiations;

(d) in so far as is strictly necessary, when the time-limits

for open, restricted or negotiated procedures referred to in

regulations 39 and 40 cannot be respected for reasons of

extreme urgency occasioned by unforeseeable events. The

circumstances invoked to justify urgency must not be

attributable to the contracting authority;

(e)

in so far as is strictly necessary, for additional

services not included in the project initially considered or in the

contract first concluded but which have, through unforeseen

circumstances, become necessary for the performance of the

service described therein, on condition that the award is made to

the economic operator carrying out such service

(i) when such additional services cannot be

technically or economically separated from the original

contract without major inconvenience to the contracting

authority, or

(ii) when such additional services, although

separable from the performance of the original contract,

are strictly necessary for its completion

Provided that the aggregate estimated value of

contracts awarded for additional services may not exceed

fifty per cent of the amount of the principal contract;

(e)

in so far as is strictly necessary, for new services

consisting in the repetition of similar services entrusted to the

economic operator to which the same contracting authority

awarded an original contract, provided that such services

conform to a basic project for which a contract was originally

awarded in accordance with the open or restricted procedure

Provided that where a contracting authority intends

to award a series of tenders for the same project, EU notice must

initially be given stating that the negotiated procedure might be

adopted, and must stipulate the total estimated cost of

subsequent services which shall be taken into consideration by

the contracting authority when they apply the provisions of

regulation 15.

This procedure may be used only during the three years

following the conclusion of the original contract.

(1) The contracting authority may state in the contract

documents, or be obliged by the Director of Contracts to do so, the

body or bodies from which a candidate or tenderer may obtain the

appropriate information on the obligations relating to taxes, to

environmental protection, to the employment protection provisions

and to the working conditions which are in force in Malta, or the

region or locality in which the services are to be provided and which

shall be applicable to the services provided during the performance of

the contract.

(2) A contracting authority which supplies the information

referred to in subregulation (1) shall request the tenderers or

candidates in the contract award procedure to indicate that they have

taken account, when drawing up their tender, of the obligations

relating to employment protection provisions and the working

conditions which are in force in the place where the service is to be

provided. This shall be without prejudice to the application of

regulation 28.

Contracting authorities which have admitted variants

pursuant to regulation 46 may not reject a variant on the sole grounds

that it would lead, if successful, to a supply contract rather than a

public service contract within the meaning of this regulation.

Candidates or tenderers who, under the law of the Member

State in which they are established, are entitled to carry out the

relevant service activity, shall not be rejected solely on the grounds

that, under the law of Malta, they would have been required to be

either natural or legal persons.

For the purposes of the award of public contracts by Third countries.

contracting authorities, contracting authorities shall apply in their

relations conditions as favourable as those which they grant to

economic operators of third countries in implementation of the

Agreement on Government Procurement, concluded in the framework

of the Uruguay Round multilateral negotiations. The Department of

Contracts shall to this end consult with the Advisory Committee for

Public Contracts set up by Article 1 of Decision 71/306/EEC.

Section B

Public supply contracts

(1) Public supply contracts where the estimated value of Scope.

the contract is equal to or exceeds the threshold value, shall be

awarded in terms of these regulations, save for Parts II, III, VI

Section A, VI Section C and VII which shall not apply thereto.

(2) When a contracting authority grants to a body other than a

contracting authority, regardless of its legal status, special or

exclusive rights to engage in a public service activity, the instrument

granting this right shall stipulate that the body in question must

observe the principle of non-discrimination by nationality when

awarding public supply contracts to third parties.

(3) This Part shall apply to public supply contracts for which

the estimated value equals or exceeds the threshold concerned at the

dispatch of the EU contract notice for publication.

(1) (a) A contracting authority may award public After prior

supply contracts, by negotiated procedure after prior publication of an publication

an EU contract

EU contract notice, in the event of tenders in response to an open or notice.

restricted procedure which are irregular or unacceptable for reasons

which are consistent with these regulations and in so far as the

original terms of the contract are not substantially altered. The

contracting authority shall in these cases publish an EU contract

notice, unless they include in such negotiated procedures all and only

the economic operators satisfying the criteria of regulations 45 and 49

to 52 which, during the prior open or restricted procedure, have

submitted tenders in accordance with the formal requirements of the

tendering procedure.

(b) In exceptional cases, when the nature of the

supplies or the risks attaching thereto do not permit prior overall

pricing.

(2) In the cases referred to in subregulation (1), contracting

authorities shall negotiate with tenderers the tenders submitted by

them in order to adapt them to the requirements which they have set

in the contract notice, the specifications and additional documents, if

any, and to seek out the best tender in accordance with regulation 27.

(3) During the negotiations, contracting authorities shall

ensure the equal treatment of all tenderers. In particular they shall not

provide information in a discriminatory manner which may give some

tenderers an advantage over others.

(4) Contracting authorities may provide for the negotiated

procedure to take place in successive stages in order to reduce the

number of tenders to be negotiated by applying the award criteria in

the contract notice or the specifications. The contract notice or the

specifications shall indicate whether recourse has been had to this

option.

A contracting authority may award its public supply

contracts by negotiated procedure without prior publication of an EU

contract notice, in the following cases

(a)

in the event that no tenders or suitable tenders or no

applications have been submitted in response to an open or

restricted procedure, provided the initial terms of the contract

are not substantially altered and on condition that a report is

communicated to the Commission at its request;

(b) when the products involved are manufactured purely

for the purpose of research, experiment, study or development.

This provision does not extend to quantity production to

establish commercial viability or for the recovery of research

and development costs;

(c)

when, for technical or artistic reasons, or for reasons

connected with the protection of exclusive rights, the contract

may be awarded only to a particular economic operator;

(d) in so far as is strictly necessary when the time-limits

for open, restricted or negotiated procedures referred to in

regulations 39 and 40 cannot be respected for reasons of

extreme urgency occasioned by events unforeseeable by the

contracting authority provided that the circumstances invoked

to justify urgency must not be attributable to the contracting

authority;

(e)

in respect of additional deliveries by the original

supplier which are intended either as a partial replacement of

normal supplies or installations or as the extension of existing

supplies or installations where a change of supplier would

oblige the contracting authority to acquire material having

different technical characteristics which would result in

incompatibility or disproportionate technical difficulties in

operation and maintenance. The length of such contracts as well

as that of recurrent contracts may not, as a general rule, exceed

three years;

(f)

for supplies quoted and purchased on a commodity

market;

(g) for the purchase of supplies on particularly

advantageous terms, from either a supplier which is definitely

winding up its business activities, or the receivers or liquidators

of a bankruptcy, an arrangement with creditors, or a similar

procedure under the laws of Malta.

Contracting authorities which have admitted variants Rejection of

pursuant to regulation 46 may not reject a variant on the sole grounds variants.

that it would lead, if successful, to a service contract rather than a

public supply contract within the meaning of this regulation.

For the purposes of the award of public contracts by Third countries.

contracting authorities, contracting authorities shall apply in their

relations conditions as favourable as those which they grant to

economic operators of third countries in implementation of the

Agreement on Government Procurement, concluded in the framework

of the Uruguay Round multilateral negotiations. The Department of

Contracts shall to this end consult with the Advisory Committee for

Public Contracts set up by Article 1 of Decision 71/306/EEC.

Section C

Public works contracts

(1) Public works contracts and public works Scope.

concessions where the estimated value of the contract or concession,

at the dispatch of the EU contract notice for publication, is equal to or

exceeds the threshold value, shall be awarded in terms of these

regulations, save for Parts II, III, VI Section A, VI Section B and VII

which shall not apply thereto.

(2) This Part shall also apply to public works contracts issued

by an authority not being a contracting authority where those

contracts involve civil engineering activities or building work for

hospitals, facilities intended for sports, recreation and leisure, school

and university buildings or buildings used for administrative

purposes, the estimated value of which is equal to or exceeds the

threshold value of Lm2,448,000 net of VAT, but where fifty per cent

or more of the value of the public works contract is subsidised by a

contracting authority. Contracting authorities awarding such subsidies

shall ensure compliance with this regulation both when they

themselves award the contract for and on behalf of those other entities

and where the public contract is awarded by one or more entities

other than themselves.

(1) Public works concession contracts concluded by the

contracting authorities where the value of the contracts is equal to or

greater than Lm2,448,000 shall be governed by this regulation. The

value shall be calculated in accordance with the rules applicable to

public works contracts defined in regulation 15.

(2) This regulation shall not apply to public works concessions

which are awarded

(a)

in the cases referred to in regulation 16 in respect of

public works contracts;

(b) by contracting authorities exercising one or more of

the activities referred to in regulations 3 to 7 of the Public

Procurement Regulations, where those concessions are awarded

for carrying out those activities

Provided that, this part shall continue to apply to

public works concessions awarded by contracting authorities

carrying out one or more of the activities referred to in

regulation 6 of the Public Procurement Regulations and

awarded for those activities.

(3) (a)

Contracting authorities which wish to award a

public works concession contract shall make known their intention by

means of a notice.

(b) Notices of public works concessions shall contain

the information referred to in Annex I C of Schedule 9 and, where

appropriate, any other information deemed useful by the contracting

authority, in accordance with the standard forms adopted by the

Commission.

(c)

Notices shall be published in accordance with

regulation 48(6) to (12).

(4) When contracting authorities resort to a public works

concession, the time limit for the presentation of applications for the

concession shall be not less than fifty-two days from the date of

dispatch of the notice, except where regulation 40(4) applies.

Regulation 40(7) shall apply.

(5) The contracting authority may

(a)

either require the concessionaire to award contracts

representing a minimum of 30 per cent of the total value of the

work for which the concession contract is to be awarded, to

third parties, at the same time providing the option for

candidates to increase this percentage, this minimum percentage

being specified in the concession contract,

(b) or request the candidates for concession contracts to

specify in their tenders the percentage, if any, of the total value

of the work for which the concession contract is to be awarded

which they intend to assign to third parties.

(6) This regulation shall not apply to additional works not

included in the concession project initially considered or in the initial

contract but which have, through unforeseen circumstances, become

necessary for the performance of the work described therein, which

the contracting authority has awarded to the concessionaire, on

condition that the award is made to the economic operator performing

such work

(a)

when such additional works cannot be technically or

economically separated from the initial contract without major

inconvenience to the contracting authorities, or

(b) when such works, although separable from the

performance of the initial contract, are strictly necessary for its

completion

Provided that the aggregate value of contracts awarded for

additional works may not exceed fifty per cent of the amount of the

original works concession contract.

(7) Where the concessionaire is a contracting authority it shall

comply with the provisions laid down by this regulation for public

works contracts in the case of works to be carried out by third parties.

(8) (a)

Public works concessionaires which are not

contracting authorities shall apply the advertising rules defined in

subregulation (9) when awarding works contracts to third parties

where the value of such contracts is equal to or greater than

Lm2,448,000.

Advertising shall not, however, be required where a works

contract satisfies the conditions listed in regulation 38(2).

The values of contracts shall be calculated in accordance with

the rules applicable to public works contracts laid down in regulation

15. (b) Groups of undertakings which have been formed to

obtain the concession or economic operators related to them shall not

be considered third parties.

"Related undertaking" shall mean any undertaking over which

the concessionaire can exert a dominant influence, whether directly or

indirectly, or any undertaking which can exert a dominant influence

on the concessionaire or which, as the concessionaire, is subject to the

dominant influence of another undertaking as a result of ownership,

financial participation or the rules which govern it. A dominant

influence on the part of an undertaking is presumed when, directly or

indirectly in relation to another undertaking, such undertaking –

(i) holds a

majority

of

the

undertaking’s

subscribed capital;

(ii) controls a majority of the votes attached to the

shares issued by the undertaking; or

(iii) can appoint more than half of the undertaking's

administrative, management or supervisory body.

The exhaustive list of such undertakings shall be included in the

application for the concession. That list shall be brought up to date

following any subsequent changes in the relationship between the

undertakings.

(9) (a)

Works concessionaires which are not contracting

authorities and which wish to award works contracts to a third party

shall make known their intention by way of a contract notice.

(b) Notices shall contain the information referred to in

Annex I C of Schedule 9 and, where appropriate, any other

information deemed useful by the works concessionaire, in

accordance with the standard form adopted by the Commission.

(c)

The notice shall be published in accordance with

regulation 48.

(d) Regulation 48(12) on the voluntary publication of

notices shall also apply.

(10) In works contracts awarded by a works concessionaire

which is not a contracting authority, the time limit for the receipt of

requests to participate, fixed by the concessionaire, shall be not less

than thirty-seven days from the date on which the contract notice was

dispatched and the time limit for the receipt of tenders not less than

forty days from the date on which the contract notice or the invitation

to tender was dispatched. Regulation 40(4), (5) and (6) shall apply.

(1) A contracting authority may award its public works After prior

contracts by negotiated procedure, after prior publication of an EU publication.

contract notice

(a)

in the event of tenders in response to an open or

restricted procedure which are irregular or unacceptable for

reasons consistent with these regulations, in so far as the

original terms of the contract are not substantially altered. In

such cases a contracting authority may refrain from publishing

an EU contract notice where it includes in the negotiated

procedure all and only the tenderers who satisfy the criteria of

regulations 45 and 49 to 52 and who during the preceding open

or restricted procedure have submitted tenders in accordance

with the formal requirements of the tendering procedure;

(b) when the works involved are carried out only for the

purpose of research, experiment or development but not for the

purposes of establishing commercial viability or for the

recovery of research and development costs;

(c)

in exceptional cases, when the nature of the works or

the risks attaching thereto do not permit prior overall pricing.

(2) In the cases referred to in subregulation (1), contracting

authorities shall negotiate with tenderers the tenders submitted by

them in order to adapt them to the requirements which they have set

in the contract notice, the specifications and additional documents, if

any, and to seek out the best tender in accordance with regulation 27.

(3) During the negotiations, contracting authorities shall

ensure the equal treatment of all tenderers. In particular they shall not

provide information in a discriminatory manner which may give some

tenderers an advantage over others.

(4) Contracting authorities may provide for the negotiated

procedure to take place in successive stages in order to reduce the

number of tenders to be negotiated by applying the award criteria in

the contract notice or the specifications. The contract notice or the

specifications shall indicate whether recourse has been had to this

option.

A contracting authority may award its public works

contracts by negotiated procedure without prior publication of an EU

contract notice

(a)

in the event that no tenders or no suitable tenders or

no applications have been submitted in response to an open or

restricted procedure, provided that the initial terms of the

contract are not substantially altered and provided that a report

is communicated to the Commission at its request;

(b) when, for technical or artistic reasons or for reasons

connected with the protection of exclusive rights, the works

may be awarded only to a particular economic operator;

(c)

when the time-limits for open, restricted or

negotiated procedures referred to in regulations 39 and 40

cannot be respected for reasons of extreme urgency occasioned

by unforeseeable events. The circumstances invoked to justify

urgency must not be attributable to the contracting authority;

(d) for additional works not included in the project

initially considered or in the original contract but which have,

through unforeseen circumstances, become necessary for the

carrying out of the work described therein, on condition that the

award is made to the economic operator performing such works

(i) when such additional works cannot be

technically or economically separated from the original

contract without major inconvenience to the contracting

authority, or

(ii) when such works, although separable from the

performance of the original contract, are strictly necessary

to its completion

Provided that the aggregate value of contracts

awarded for additional works may not exceed fifty per cent of

the amount of the original contract;

(e)

for new works consisting in the repetition of similar

works entrusted to the economic operator to whom the same

contracting authority awarded an original contract, provided

that such works conform to a basic project for which the

original contract was awarded in accordance with the open or

restricted procedures

Provided that where a contracting authority intends to

award a series of tenders for the same project, EU notice must

initially be given stating that the negotiated procedure might be

adopted, and must stipulate the total estimated cost of subsequent

works which shall be taken into consideration by the contracting

authority when they apply the provisions of regulation 15. This

procedure may be used only during the three years following the

conclusion of the original contract.

In the case of public contracts relating to the design and Design and

construction of a subsidised housing scheme whose size and construction

public housing

complexity, and the estimated duration of the work involved, require contracts.

that planning be based from the outset on close collaboration within a

team comprising representatives of the contracting authorities,

experts and the contractor to be responsible for carrying out the

works, a special award procedure may be adopted for selecting the

contractor most suitable for integration into the team.

In particular, contracting authorities shall include in the EU

contract notice as accurate as possible a description of the works to be

carried out so as to enable interested contractors to form a valid idea

of the project.

Furthermore, contracting authorities shall, in accordance with

the qualitative selection criteria referred to in regulations 45 and 49 to

52, set out in such EU contract notice the personal, technical and

financial conditions to be fulfilled by candidates.

Where such procedure is adopted, contracting authorities shall

apply regulations 40, 45 and 49 to 52.

(1) The contracting authority may state in the contract Information.

documents, or be obliged by the Director of Contracts to do so, the

body or bodies from which a tenderer or candidate may obtain the

appropriate information on the obligations relating to taxes, to

environmental protection, to the employment protection provisions

and to the working conditions which are in force in Malta, or the

region or locality in which the works are to be carried out and which

shall be applicable to the works carried out on site during the

performance of the contract.

(2) A contracting authority which supplies the information

referred to in subregulation (1) shall request the tenderers or

candidates in the contract award procedure to indicate that they have

taken account, when drawing up their tender, of the obligations

relating to employment protection provisions and the working

conditions which are in force in the place where the works are to be

carried out. This shall be without prejudice to the application of

regulation 28 concerning abnormally low tenders.

For the purposes of the award of public contracts by

contracting authorities, contracting authorities shall apply in their

relations conditions as favourable as those which they grant to

economic operators of third countries in implementation of the

Agreement on Government Procurement, concluded in the framework

of the Uruguay Round multilateral negotiations. The Department of

Contracts shall to this end consult with the Advisory Committee for

Public Contracts set up by Article 1 of Decision 71/306/EEC.

PART VII

Public procurement of entities operating in the water, energy,

transport and postal services sector

The public procurement of entities operating in the water,

energy, transport and postal services sector shall, where the estimated

value of a public contract is equal to or exceeds the threshold value as

described in regulation 16 of the Public Procurement Regulations, be

governed by the said Public Procurement Regulations.

PART VIII

Variation Orders

(1) Without prejudice to the provisions of Parts IV, V,

VI Section A, VI Section B, VI Section C and VII, in all cases where

variation orders individually or in their totality exceed by more than

five per cent the awarded contract value, the prior approval of the

Director is to be sought before a commitment is made by the

contracting authority with the contractor.

(2) When requesting such an approval, the contracting

authority shall present a document specifying the background to the

cause of such a variation, the effect on the total cost of the tender and

any effect on the recurrent expenditure that will ensue.

(3) When granting or refusing such a request for variation, the

Director shall specify his view as to whether such a variation could

have been avoided and the procedure to be followed in future by the

contracting authority to avoid a recurrence.

(4) The Director is to keep a full record of variation requests,

including the name of the contractor involved and details of the

documents specified in subregulations (2) and (3).

Approval for variations, having a financial effect as Contracts

indicated in regulation 77(1) on contracts awarded by contracting awarded

authorities listed

authorities listed in Schedule 3, shall require the prior approval of the in Schedule 3.

Minister responsible for that authority who may delegate his authority

in writing to the Parliamentary Secretary, the Permanent Secretary or

the Head of the authority concerned

Provided that a list of all variations catered for under this

Part is to be published in the Gazette every six months by the Director

and by Heads of contracting authorities.

PART IX

Contracts Committees

(1) The Contracts Committees, referred to in regulations Contracts

8 and 9, shall be composed of the Director of Contracts, who shall be Committees.

ex officio Chairman, together with not less than four and not more

than ten other members who appear to the Prime Minister to have the

relevant qualifications or experience.

(2) The Prime Minister shall also appoint persons from among

the staff at the Department of Contracts to act as secretaries of these

committees as may be directed by the Director. The secretaries shall

not be members of these committees and may not vote.

(3) During the Chairman’s absence or inability to act as

Chairman, or during any vacancy in the office of the Chairman, the

Prime Minister may appoint an officer from among the most senior of

officers at the Department of Contracts to act as the Chairman of the

Committees, to exercise all powers and perform all the functions of

the Chairman.

(4) A person shall be disqualified from being appointed to and

from remaining a member of a Committee if he

(a)

is a member of the House of Representatives; or

(b) has such a financial or other interest as is likely to

prejudice the discharge of his functions as a member of the

Contracts Committees.

(5) A member of either of these committees may resign his

office by letter addressed to the Prime Minister.

(6) A member of either committee who has any direct or

indirect interest in any contract dealt with by such committee shall

disclose the nature of his interest at the first meeting of that

committee after the relevant facts have come to his knowledge; such

disclosure shall be recorded in the minutes of that meeting of the

committee and the member having an interest as aforesaid shall

withdraw from any meetings at which such contract is discussed.

(7) The provisions of regulation 84(9) shall apply mutatis

mutandis to the Contract Committees.

PART X

Functions of the Contracts Committees

The Contracts Committees shall

(a)

advise on all matters relating to public contracts, as

well as on public procurement of materials, works and services

either on their own initiative or on specific issues relating to its

functions which may from time to time be referred to it for its

advice;

(b) evaluate reports and recommendations submitted by

contracting authorities and make definite recommendations for

the award of contracts ensuring that the best value for money at

the lowest possible cost is attained. In this regard, due

consideration shall be given to -

(i) the final cost including financing costs to the

contracting authority, and

(ii) the impact of each offer on the recurrent

expenditure of a contracting authority;

(c)

report any irregularities that may be brought to its

notice or that may be detected in the tendering process and

make recommendations thereon to the Minister charged with

responsibility for the contracting authority concerned;

(d) deal with matters which, according to the contract,

have to be referred to the Contracts Committee, and hear and

determine disputes between contracting authorities as the case

may be, and contractors, arising out of public contracts; and

(e)

formally investigate complaints concerning public

contracts and procurements and make recommendations

thereon

Provided that such complaints are not the subject of

a separate inquiry or investigation by the Director in the

exercise of his functions or else have to be heard and

determined by the Appeals Board.

PART XI

Procurement Committees

(1) The Minister may authorise the setting up of Procurement

committees, to be known as Procurement Committees, in respect of Committees.

tenders whose estimated value exceeds Lm 20,000.

(2) Each Procurement Committee shall be composed of the

head of the department, or, in his absence, an officer appointed by the

Minister from among the most senior of officials at the contracting

authority effecting the purchase. This nominee shall be, ex officio,

Chairman of the Committee together with not less than four other

members appointed by the Minister, none of whom shall be

performing duties at or be members of the staff of the department

effecting the purchase.

(3) The provisions of regulations 8, 10(2), 10(3), 10(4) and 13,

shall apply mutatis mutandis to the setting up and the functions of

each Procurement Committee, its chairman and its members.

PART XII

Separate packages in tender offer

(1) Contracting authorities listed in Schedule 1 shall Separate

ensure that for all tenders awarded by the open or restricted packages

tender offer.

procedures with an estimated value of over Lm250,000 or, at the

discretion of the Director of Contracts, on tenders of a lower

estimated value or on tenders awarded through the negotiated or

competitive dialogue procedures, the tender conditions stipulate that

tenders shall only qualify for consideration if they are submitted in

separate packages as follows

(a)

Package One: an original and valid tender bond (Bid

Bond), duly executed in the form, for the amount and for the

validity period stipulated in the official tender document;

(b) Package Two: technical specifications including

supportive literature, details, designs, samples and any other

matter as requested in the tender documents; and

(c)

Package Three: completed price schedules and, or

bills of quantities, form of tender, payment terms or other

financial arrangements; any covering letter which may provide

other pertinent details of a commercial nature.

(2) In the process of adjudicating the tender, the packages for

all tenderers shall be opened in public and in the sequence

enumerated in the subregulation (1). When at any stage, any tenderer

fails to comply with the tendering procedural requirements and, or

with the specifications, the remaining packages in his tender offer are

to be discarded unopened

Provided that the Director of Contracts or, with his

authorization, any contracting authority, shall have the right to seek

clarifications on points of a technical nature to enable a proper

evaluation of any tender, which, however, would at that stage have

already been declared to be basically compliant.

(3) Any decision leading to the discarding of any tender

during any stage of the process is to be given publicity at the office of

the contracting authority or at the Department of Contracts as the case

may be and the affected tenderer is to be informed of the decision

within two working days of its publication.

(4) A complaint by the affected tenderer and any person

having or having had an interest in obtaining a particular public

contract must reach the Department of Contracts or the contracting

authority involved, as the case may be, within four working days from

the date of notification of the decision and such complaint shall be

accompanied by a deposit of 0.5% of the estimated tender value,

which deposit shall only be refundable if the Appeals Board finds in

the tenderer’s or other person having or having had an interest in

obtaining a particular public contract’s favour

Provided that the deposit shall in no case be less than

Lm250 or more than Lm 25,000.

(5) The review is to be effected by the public contracts

Appeals Board before the next stage of the adjudication process is

commenced.

(6) The procedure to be followed by the Board when carrying

out the review shall consist in a complete and detailed re-examination

of the reasons brought forward by the adjudication board of any

department or contracting authority for the discarding of any

particular tender.

(7) In fulfilling this obligation the Chairman of the Appeals

Board shall have the right to put appropriate questions to the Head of

any department or contracting authority as well as the members of the

respective adjudication boards and to have recourse to all pertinent

documentation.

(8) The Chairman of the Appeals Board shall also have the

right to seek expert advice from outside the department or contracting

authority involved.

(9) The decision of the Board shall be final and binding on all

parties and the award procedure shall proceed in accordance with its

decision.

(10) Any tenderer or any other person having or having had an

interest in obtaining a particular public contract whose complaint

under this Part is not upheld shall not have the right to have recourse

to the procedure for appeals as provided for in Part XIII

Provided that the right of appeal under Part XIII shall be

available to those tenderers whose offer reaches the final stage of the

award procedure, that is, the opening and the publication of the

financial proposals

Provided further that any rights granted to tenderers by

virtue of regulation 84(19) shall also apply to appeals decided by the

Appeals Board under this Part.

PART XIII

Procedure for the submission of appeals

(1) Any tenderer who feels aggrieved by a proposed Procedure for

award of a contract and any person having or having had an interest in the

of appeals.

obtaining a particular public supply, public service or public works

contract and who has been or risks being harmed by an alleged

infringement may, within fourteen working days of the publication of

the decision, file a notice of objection at the Department of Contracts

or the contracting authority involved as the case may be. Such a

notice of objection shall only be valid if accompanied by a deposit

equivalent to one per cent of the estimated tender value, provided that

in no case shall the deposit be less than Lm 200 or more than Lm

25,000. The Head of a contracting authority shall immediately notify

the Director that an objection had been filed with his authority

thereby immediately suspending the award procedure. The

Department of contracts or the contracting authority involved, as the

case may be, shall be precluded from concluding the contract during

the period of fourteen working days allowed for the submission of

appeals. The award process shall be completely suspended if an

appeal is eventually submitted.

(2) The procedure to be followed in submitting and

determining complaints as well as the conditions under which such

complaints may be filed shall be the following

(a)

Any decision by the General Contracts Committee

(or a Special Contracts Committee) and by a contracting

authority, shall be made public at the Department of Contracts

or at the office of the contracting authority prior to the award of

the contract.

(b) The notice of objection duly filed in accordance

with subregulation (1) shall be made public by not later than the

next working day following its filing.

(c)

Within three working days of the expiry of the

fourteen-day period allowed for the filing of a notice of

objection, any other tenderer and any person having or having

had an interest involved in the call for tenders may register an

interest in the proceedings. The registration of interest shall

only be valid if accompanied by a deposit amounting to the

deposit paid under subregulation (1). The tenderer who had

been indicated in the adjudication decision of the Director or the

contracting authority as the one to whom the contract was to be

awarded, shall be deemed to have registered an interest but does

not need to pay a deposit.

(d) The names of the tenderers or other person having or

having had an interest in obtaining a particular public contract

who register an interest shall be made public on the first

working day after the lapse of the time limit specified in

paragraph (c).

(e)

(i) Within three working days after the

publication of the list of persons who register an interest, the

tenderer filing the notice of objection shall send a reasoned

letter of objection explaining the objection.

(ii) The letter of objection and any accompanying

documentation shall be submitted in a number of copies that

equals the number of tenderers with a registered interest, plus

three.

(iii) The letter of objection shall be made public

and shall be circulated to all persons with a registered interest.

(f)

(i) Within five working days from the publication

of the letter of objection, any tenderer who had registered an

interest may send a reasoned reply to the letter of objection.

(ii) The

reply

and

any

accompanying

documentation shall be submitted in a number of copies that

equals the number of tenderers with a registered interest, plus

three.

(iii) The reply shall be made public and shall be

circulated to all tenderers with a registered interest and to all

tenderers who have filed an objection.

(g) Within ten working days of the publication of the

replies the Director or the Head of the contracting authority

shall prepare a report (the Analysis Report) analysing the letter

of objection and the replies thereto. This report shall be

circulated to the persons who file an objection and who have a

registered interest. After the preparatory process is duly

completed, the Head of the contracting authority shall forward

to the Director of Contracts all documentation pertaining to the

call for tenders in question including files, tenders submitted,

copies of deposit receipts, any motivated letter, analysis report,

etc.

(h) The Director shall forward all the documentation

related to any appeal case to the Chairman of the Appeals Board

who shall then proceed as stipulated in Part XIV.

(i)

The Director or the Head of the contracting

authority shall publish a copy of the decision of the Appeals

Board at his department or at the premises of the relevant

contracting authority, as the case may be. Copies of the decision

shall be forwarded to the complaining tenderer, any persons

who had registered or had an implied interest and, by the

Director only, to the contracting authority concerned when this

is one listed in Schedule 2.

(3) Complaints in terms of this Part may only be submitted in

respect of public contracts awarded by Authorities listed in Schedule

1 whose value exceeds Lm 20,000.

PART XIV

Public Contracts Appeals Board

(1) The Public Contracts Appeals Board shall be Appeals Board.

composed of a Chairman and two members who shall be appointed by

the Prime Minister for a period of up to three years with the

possibility of re-appointment.

(2) The Prime Minister may appoint a substitute as Chairman

and substitute members of the Appeals Board, in which case the

members shall serve in accordance with such distribution of duties,

including provisions for inability of members to serve and other

circumstances, as the Prime Minister may establish.

(3) A member of the Appeals Board may not be removed

during the period covered by his appointment except for proved

misbehaviour or proved inability to perform his function.

(4) The provisions of articles 733 to 739 of the Code of

Organization and Civil Procedure shall apply to the Chairman and to

the other members of the Appeals Board with respect to complaints

before it in the same manner as they apply to judges with respect to a

case brought before a court.

(5) A person shall be disqualified from being appointed or

continuing to be a member of the Appeals Board if he is a member of

the House of Representatives or if he has a financial or other interest

as is likely to prejudice the discharge of his functions as a member of

the Appeals Board.

(6) The members of the Appeals Board shall receive such

remuneration as the Prime Minister may determine.

(7) The members of the Appeals Board shall not be held

personally liable for any act or omission done in good faith in the

course of the exercise of their functions as members of the said

Board.

(8) The Appeals Board shall be provided by the Director of

Contracts with administrative and secretarial services.

(9) The Appeals Board shall be empowered to call witnesses,

to administer oaths and to engage any government official or

nongovernmental expert to assist it in its investigations.

(10) The sessions of the Appeals Board during which the

complaint is heard shall be held in public and both the complainant

and any interested party shall have the right to attend and to be

accompanied by any person, professional or otherwise, who they

consider suitable to defend their interests.

(11) (a)

The Chairman shall have the power to determine the

procedure for the hearing of all complaints lodged with the Appeals

Board and shall ensure that during the public hearing all interested

parties are given the opportunity to make their case.

(b) The Appeals Board shall have the power to take

such interim measures as it shall deem fit.

(12) Any member of the Appeals Board who may have a direct

or indirect interest in any contract which becomes the subject of a

complaint shall inform the Director of Contracts in writing of such

interest in which case the member shall be precluded from further

participation in the hearing of the complaint.

(13) The Chairman shall appoint the public hearing at the

earliest possible date after the referral to him of the Analysis Report

and the relative documentation by the Director of Contracts as

stipulated in regulation 83(2)(h).

(14) The decision of the Appeals Board shall be final insofar as

the award of the contract involved is concerned and the Director of

Contracts or the Head of a contracting authority shall have the

authority to proceed with the award of the contract as soon as the

decision of the Board is published and notified to the interested

parties.

(15) Decisions of the Appeals Board shall preferably be taken

on the basis of unanimity. However, majority decisions shall be final

and binding with regard to the award of the contract. The Chairman

and the other two members shall have one vote each.

(16) Decisions of the Appeals Board shall be submitted by the

Chairman to the Director of Contracts in writing within ten working

days after the holding of the public session. Should the Appeals

Board be unable, for valid reasons, to meet this time-limit, the

Director of Contracts shall extend the period in question if such

extension is considered warranted by the circumstances of the case.

(17) All decisions taken by the Appeals Board shall be rendered

in writing. It shall contain all the facts and reasons on which the

Appeals Board’s decision is taken. All decisions shall be concluded

with definite recommendations which shall be binding on the Director

of Contracts or the Head of the contracting authority and all the

tenderers involved.

(18) The Appeals Board shall recommend on whether any

deposit submitted by a tenderer in terms of regulation 83 should be

refunded, in whole or in part, or not, giving written reasons for such a

recommendation. The Board’s recommendation shall be final and

binding.

(19) Any bidder submitting a complaint and who shall not be

satisfied with the final decision taken by the Appeals Board shall

refer the matter to the First Hall of the Civil Court. Such recourse

shall not however delay the Director of Contracts or the Head of a

contracting authority from implementing the Appeals Board’s final

decision.

The Public Contracts Regulations, 2003 are hereby

repealed.

2003. SCHEDULE 1

Complete List of Contracting Authorities

OFFICE OF THE PRIME

Permanent Secretary’s Office / Department of

MINISTER

Corporate Services

Internal Audit and Investigations Directorate

Planning and Priorities Co-ordination

Directorate

Armed Forces of Malta

Information

Government Printing Press

Electoral Office

Public Service Commission

MALTA COUNCIL FOR ECONOMIC AND

SOCIAL DEVELOPMENT

BROADCASTING AUTHORITY

MINISTRY OF FINANCE

Permanent Secretary’s Office / Department of

Corporate Services

Treasury Department

Inland Revenue Department

Capital Transfer Duty

Customs Department

VAT Division

Lotteries Department

Contracts Department

Economic Policy Division

MALTA FINANCIAL SERVICES

AUTHORITY

MALTA STOCK EXCHANGE

LOTTERIES AND GAMING AUTHORITY

MALTA STATISTICS AUTHORITY

TAX COMPLIANCE UNIT

MINISTRY FOR JUSTICE

Permanent Secretary’s Office / Director

AND HOME AFFAIRS

Corporate Services

Citizen and Expatriate Affairs

Notary to Government

Police Department

Civil Protection

Correctional Services

Government Property Division

Joint Office

Land Registry

Public Registry

Civil Registration

Attorney General

Judicial

Local Councils Department

MALTA ARBITRATION CENTRE

LOCAL COUNCILS

MINISTRY OF EDUCATION,

Permanent Secretary’s Office / Department of

YOUTH AND EMPLOYMENT

Corporate Services

Education Division / Department of Finance

and Administration

Libraries and Archives

Examinations

Industrial and Employment Relations

JUNIOR COLLEGE

MALTA COLLEGE OF ARTS, SCIENCE

AND TECHNOLOGY

UNIVERSITY OF MALTA

FOUNDATION FOR INTERNATIONAL

STUDIES

FOUNDATION FOR TOMORROW’S

SCHOOLS

FOUNDATION FOR EDUCATIONAL

SERVICES

MALTA COUNCIL FOR SCIENCE &

TECHNOLOGY

EMPLOYMENT AND TRAINING

CORPORATION

OCCUPATIONAL HEALTH AND SAFETY

AUTHORITY

INSTITUTE FOR TOURISM STUDIES

KUNSILL MALTI G}ALL-ISPORTS

COOPERATIVES BOARD

NATIONAL POOL TAL-QROQQ

MINISTRY FOR TOURISM

Permanent Secretary / Department of Corporate

AND CULTURE

Services

MALTA TOURISM AUTHORITY

HERITAGE MALTA

NATIONAL COUNCIL FOR CULTURE AND

THE ARTS

ST JAMES CAVALIER CREATIVITY

CENTRE

NATIONAL ORCHESTRA

MANOEL THEATRE

MEDITERRANEAN CONFERENCE CENTRE

MALTA CENTRE FOR RESTORATION

SUPERINTENDENCE OF CULTURAL

HERITAGE

FONDAZZJONI PATRIMONJU MALTI

MINISTRY FOR

Permanent Secretary’s Office / Department of

COMPETITIVENESS AND

Corporate Services

COMMUNICATIONS

Civil Aviation

Commerce Division

Consumer and Competitive Division

MALTA COMMUNICATIONS AUTHORITY

MALTA MARITIME AUTHORITY

MALTA STANDARDS AUTHORITY

MINISTRY FOR

Permanent Secretary’s Office / Department of

RESOURCES AND

Corporate Services

INFRASTRUCTURE

Works Division / Finance and Administration

Operating Units

Construction and Maintenance

Manufacturing and Services

Building and Engineering

Building Construction Industry Department

Cleaning Department

Oil Exploration

MALTA RESOURCES AUTHORITY

BUILDING INDUSTRY CONSULTATIVE

COUNCIL

MINISTRY FOR GOZO

Permanent Secretary’s Office / Department of

Corporate Services

Customer Services

Projects and Development

MINISTRY OF HEALTH,

Permanent Secretary’s Office / Department of

THE ELDERLY AND

Corporate Services

COMMUNITY CARE

Health Division / Finance and Administration

Elderly and Community Care

FOUNDATION FOR MEDICAL SERVICES

ZAMMIT CLAPP HOSPITAL

MATER DEI HOSPITAL

MOUNT CARMEL HOSPITAL

MEDICAL PRODUCTS REGULATORY

AUTHORITY

WELFARE COMMITTEE

MINISTRY FOR

Permanent Secretary’s Office / Department of

INFORMATION

Corporate Services

TECHNOLOGY AND

WATER SERVICES CORPORATION

INVESTMENTS

PROMOTION

ENEMALTA CORPORATION

MALTA NATIONAL LABORATORY

MGI/MIMCOL

MALTAPOST PLC

GOZO CHANNEL CO LTD

DATA PROTECTION COMMISSION

MITTS

INDUSTRIAL PROJECTS AND SERVICES

LTD.

PRIVATISATION UNIT

COLLECTIVE BARGAINING UNIT

MALTA ENTERPRISE

MALTA INDUSTRIAL PARKS

MINISTRY FOR RURAL

Permanent Secretary’s Office / Department of

AFFAIRS AND THE

Corporate Services

ENVIRONMENT

Agriculture Services and Rural Development

Food and Veterinary Services

Fisheries and Conservation Control

Environment

MALTA ENVIRONMENT AND PLANNING

AUTHORITY

WASTESERV MALTA LTD.

MINISTRY FOR URBAN Permanent Secretary Office / Department of

DEVELOPMENT

AND Corporate Services

ROADS

MALTA TRANSPORT AUTHORITY

MINISTRY FOR THE

Permanent Secretary’s Office / Department of

FAMILY AND SOCIAL

Corporate Services

SOLIDARITY

Social Security

Family Welfare

Social Housing

HOUSING AUTHORITY

FOUNDATION FOR SOCIAL WELFARE

SERVICES

SEDQA

APPO{{

NATIONAL COMMISSION FOR DISABLED

PERSONS

SAPPORT

MINISTRY OF FOREIGN

Permanent Secretary’s Office / Department of

AFFAIRS

Corporate Services

INTERNATIONAL INSTITUTE ON AGEING

11.3

Motion picture and video tape production and

961a

related services

92.12

Motion picture or video tape distribution

961b

services

92.13

Motion picture projection services

961c

92.2

Radio and television services

961d

92.31.2

Artistic and literary creation and interpretation

961e

services

92.32.1

Arts facilities operation services

961f

92.33.1

Fair and amusement park services

961g

92.34

Other entertainment services

961h

92.4

News agency services

92.5

Library, archives, museums and other cultural 963a

services

963b

963c

92.6

Sporting services

964a

964b

92.7

Other recreational services

964c

964d

27. Other services