Local Councils (Tendering) Regulations, 2009

L.N. 255 of 2009

LOCAL COUNCILS ACT

(CAP. 363)

Local Councils (Tendering) Regulations, 2009

IN EXERCISE of the powers conferred by article 72 of the

Local Councils Act and by order 38 of the Standing Orders in the

Sixth Schedule to the Local Councils Act, the Prime Minister has

made the following regulations

PART I

General Provisions

The title of these regulations is the Local Councils

(Tendering) Regulations,2009.

In these regulations, unless the context otherwise requires -

"the Act" means the Local Councils Act;

"appellant" means a bidder who has lodged an appeal against a

Council’s decision;

"bid bond" means the tender guarantee which a tenderer will be

required to submit in favour of the Council in accordance with the

tendering procedures;

"bidder" means, that person who has submitted a tender to the

Council in accordance with these regulations;

“the Board” means the Local Councils Tendering Appeals

Board as established in Part IV;

"contractor" means the person or persons whose tender has been

accepted by the Tender Committee;

"Executive Secretary" shall have the same meaning as is

assigned to it in the Act;

"the Minister" means the Minister responsible for Local

Government;

"publication" means the affixing of the Council’s decision on

the Council’s notice board;

"Tender Committee" means the Council itself, or, if a committee

is appointed to process, evaluate and adjudicate a tender in

accordance with article 40(2) of the Act, such appointed committee;

"tender sum" means the total sum tendered by a contractor for

any contract of works, services, materials or supplies;

"tendering procedures" means the Local Councils tendering

procedures issued by the Minister to be followed by Councils in the

execution of their duties and responsibilities under the Act and in

accordance with these regulations.

PART II

Tendering

(1)

Prior to a public call for tenders for works, Authorisation of

services, materials or supplies, the Executive Secretary shall ensure expenditure

tender.

that

(a)

the proposed works, services, materials or supplies

form part of the Council’s business plan and are in accordance

with the terms of such business plan as stipulated in article 59 of

the Act;

(b)

the proposed expenditure is provided for and is in

accordance with the Council’s approved estimates of income

and expenditure, and complies with articles 56 and 61 of the

Act;

(c)

there are adequate funds available to meet the

proposed or expected expenditure;

(d)

the Council has authorised the expenditure;

(e)

prepare an estimate of the contract value, which

estimate shall be approved by the Council.

(2) Unless otherwise provided for in the Act or the Local L.N. 155 of

Councils (Financial) Regulations, 1993, a call for tenders shall be 1993.

issued when the Council requires works, services, materials or

supplies in connection with the execution of its functions.

A call for tenders shall be required if the proposed or Expenditure

expected expenditure exceeds the limits defined in regulation 24 or limit

call for tenders.

falls under the provisions of regulation 43, of the Local Councils

(Financial) Regulations, 1993.

Every call for tenders shall follow the tendering Tender

procedures.

procedures.

The Council may require that every tenderer provides a bid

bond, to be submitted with the tender offer.

PART III

Award of tenders

The Executive Secretary together with two Councillors

appointed by Council shall open in public the tenders submitted

following a call for tenders issued in accordance with article 40 of the

Act and make out a schedule of all tenders received.

The Tender Committee shall examine and adjudicate all

adjudication of tenders submitted in accordance with article 40 of the

Act.

(1)

The Tender Committee shall decide on the award

of tender, and the Executive Secretary shall, within three working

days from the decision by the Council, publish the Committee’s

decision, stating also the reasons, in according to article 40(2)(c) of

the Act.

(2) The Executive Secretary shall, within three working days

from the decision by the Council, publish the decision stating also the

reasons in accordance with article 40(2) (c) of the Act.

PART IV

Appeals

(1)

The Minister shall appoint a Board to hear and

decide on appeals from decisions taken by any Local Council in

respect of any call for tenders issued by such Local Council.

(2) The Board shall have the powers to hear and decide on

appeals submitted by aggrieved bidders against a decision by such

Council in respect of tenders with a contract value up to

twelve thousand euro (€12,000) and in all cases where, instead of an

established contract value, there shall be established or tendered

rates

Provided that notwithstanding these provisions, in cases where

the Council fails to establish the estimated contract value, or the

tender includes only a rate per unit, the Board shall decide about the

admissibility of the appeal on the basis of the average annual turnover

of a previous similar tender, and in the absence of a similar tender, on

the Council’s declaration of the maximum value of the tender.

(3) The Appeals Board shall be composed of a Chairman and

two other members who shall be appointed by the Minister for a

period of three years with the possibility of re-appointment for

another period of three years.

(4) The members of the Appeals Board, substitute member and

the Secretary to the Board shall receive such remuneration as the

Minister may determine.

(5)

The Minister shall also appoint substitutes for the

Chairman and the Board members to serve in cases where either the

Chairman or any member of the Board abstains or is prevented from

acting. In that case the same conditions as those applicable to the

Chairman or members of the Board shall apply.

(6)

Any matter related to the reason for abstentions or

prevention shall be decided by the Chairman.

(7) 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 be precluded from further participation in the hearing

of the complaint.

(8) The Board shall have a Registrar, and such function shall

be assumed by the Executive Secretary of the Local Councils

Association or his substitute as approved by the Board members.

(9) The Board shall convene at the Office of the Department of

the Local Government.

(10) 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 consideration of the appeal.

(11) The sessions of the Appeals Board during which the

appeal is heard shall be held in public and both the aggrieved bidder

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.

(12) The Appeals Board 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 pubic hearing all interested

parties are given the opportunity to make their case.

(13) The Minister may at any time dissolve the Board of

Appeals or remove any member of the Board or any substitute when

he so deems necessary.

(1)

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).

(2) Upon the receipt of a notice of appeal, the Board Registrar

shall immediately inform the Chairman to summon the Board as early

as possible and in no case any later than five working days from the

date when the notice of appeal is received.

(3) Upon notification of the date and time to the Board

members, the Board Registrar shall send to all parties all the details

regarding the appeal

(4) The Board Registrar shall also notify all interested parties,

of the place, date and time of the hearing. The Board shall have the

right to summon any other persons as it may deem necessary for the

fair hearing of the appeal

(5) The appeal shall be deemed to be withdrawn if a bidder

fails to appear as notified without a just cause.

(6) The Board’s decision shall be final and binding on all

parties.

Every bidder who feels aggrieved by any decision of the

Council regarding tenders may, within ten working days from the date

of the decision of the Council, present an appeal together with a

deposit of two hundred euro (€200) to the Secretary of that Council.

The full deposit shall be refunded by the Council to the appellant

bidder if that appeal is decided in favour of the appellant.

(1)

The Council shall immediately send a copy of the

appeal, together with one-half of the amount deposited, to the Board

Registrar, and such amount shall not in any case be refunded to the

Council whatever the decision of the Appeals Board may be. The

payment shall be drawn in favour of the Local Councils Association.

(2) The Board Registrar shall keep separate accounts to

register the income and outcome related to the functioning of the

Appeals Board.

(3) The Executive Secretary of the Council shall also be

responsible to submit the contract details, complete with e-mail

addresses of all the relevant parties to be summoned during the

appeal.

(1)

At the end of the appeal the decision of the Board Decision of the

shall be notified to the Council and to the appellant immediately. The Board.

Council shall on receipt of the decision publish the decision.

(2) All orders issued by the Board shall be signed by the

Chairman and certified by the Board Registrar.

(3) The decision of the Appeals Board shall be final insofar as

the award of the contract involved is concerned and the Local Council

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.

(4) 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.

(5) Decisions of the Appeals Board shall be submitted by the

Chairman to the Local Council in writing within ten working days

after the holding of the public session.

(6) 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 Local

Council and all the tenderers involved.

(7) A copy of the decision taken by the Board of Appeal shall be

sent to the interested parties, the Minister responsible for Local

Government, the Director of the Department of Local Government

and the Local Councils Association.

All documents shall be kept at the administrative office of Documents to

the Local Councils Association under the custody of the Board be

Association.

Registrar.

Within three working days from the notification of the Issuing of notice

appeals decision by the Board, the Executive Secretary of the Local of acceptance.

Council shall issue the notice of acceptance in accordance with the

decision of the said Board.

In all cases where the contract value exceeds twelve Where contract

thousand euro (€12,000), the procedure for an appeal shall be in value

€12,000

accordancewith the procedure of the Public Contracts Regulations, L.N.

2005.

2005. The Appeals Board shall not have jurisdiction in such cases

The procedures established by the Contracts Committee

appointed by the Minister responsible for finance shall, unless

otherwise provided by these regulations or other regulations in

respect of tenders issued by Local Councils, apply mutatis mutandis

PART V

Contracts

Within seven days from the letter of acceptance, or within

such longer period as the Tender Committee may in exceptional

circumstances decide, the contractor shall provide the bonds,

guarantees or insurances required under the tendering procedures and

the tender documents.

A contract agreement shall then be signed between the

Council and the contractor.

The Local Councils (Tendering) Regulations, 1993 are

hereby repealed.