MT
281 tal-2010 - Regolamenti tal-2010 dwar ix-Xiri Pubbliku
Table of Provisions (101)
Statutory Text (101 Articles)
L.N. 281 of 2010
FINANCIAL ADMINISTRATION AND AUDIT ACT
(CAP. 174)
Public Procurement Regulations, 2010
BY virtue of the powers conferred by article 4 of the
Financial Administration and Audit Act, the Minister of Finance,
the Economy and Investment has made the following regulations
PART I
General Provisions
(1) The title of these regulations is the Public
Procurement Regulations, 2010.
(2) These regulations shall come into force on the 1st
June, 2010.
Complete List of Contracting Authorities
Permanent Secretary’s Office / Department of 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
Malta Tourism Authority
Local Councils Department
Local Councils
Broadcasting Authority
Industrial Projects and Services Ltd.
Malta Environment and Planning Authority
Permanent Secretary’s Office / Department of Corporate Services
International Institute on Ageing
Mediterranean Academy for Diplomatic Studies
Permanent Secretary’s Office / Department of Corporate Services
Customer Services
Projects and Development
Permanent Secretary’s Office / Department of Corporate Services
Civil Aviation
Malta Communications Authority
Malta Maritime Authority
Malta Transport Authority
Water Services Corporation
Enemalta Corporation
Malta Information Technology Agency (MITA)
Public Registry
Land Registry
Civil Registration
Malta Government Technology Investments Limited (MGTIL)
Grand Harbour Regeneration Corporation p.l.c.
Permanent Secretary’s Office
Agriculture Services and Rural Development
Food and Veterinary Services
Fisheries and Conservation Control
Paying Agency
Works Division
Services Division
Financial Management Department
Building and Engineering
Construction and Maintenance
Manufacturing and Services
Cleaning Department
Building Construction Industry Department
Building Industry Consultative Council
Oil Exploration
Malta Council For Science and Technology
Malta Resources Authority
Waste Serve Malta Ltd.
B
MINISTRY OF EDUCATION,
Permanent Secretary’s Office / Department of Corporate Services
CULTURE, YOUTH AND SPORT
Directorate for Educational Services
Directorate for Quality and Standards in Education
Department of Regulatory Compliance
Directorate for EU and International Affairs
Libraries
National Archives
Examinations
Junior College
Malta College of Arts, Science and Technology
University of Malta
Foundation For Tomorrow’s Schools
Foundation For Educational Services
Institute For Tourism Studies
Kunsill Malti Ghall-Isports
National Pool tal-Qroqq
Heritage Malta
National Council for Culture and the Arts
St James Cavalier Creativity Centre
National Orchestra Ltd.
Manoel Theatre
Mediterranean Conference Centre
Superintendence of Cultural Heritage
Fondazzjoni Patrimonju Malti
National Commission for Higher Education
European Union Programmes Agency
Maltese National Commission for UNESCO
Public Broadcasting Services Ltd.
Permanent Secretary’s Office
Social Security
Benefit Fraud and Investigations
Social Welfare Standards
Housing Authority
Foundation For Social Welfare Services
Sedqa
Appogg
Sapport
Access
National Commission For Persons with Disability
Health
Elderly and Community Care
Foundation For Medical Services
Zammit Clapp Hospital
Mater Dei Hospital
Mount Carmel Hospital
Medicines Authority
Welfare Committee
Cooperatives Board
Industrial and Employment Relations
Employment and Training Corporation
Occupational Health and Safety Authority
Commission for the Promotion of Equality for Men and Women
Office of the Commissioner for Children
Office of the Commissioner for Voluntary Organisations
Commission on Domestic Violence
National Commission on the abuse of drugs, alcohol and other dependencies
National Commission for the Family
National Employment Authority
National Blood Transfusion Centre
B
MINISTRY OF FINANCE, THE ECONOMY
Permanent Secretary’s Office / Department of Corporate Services
AND INVESTMENT
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
Gozo Channel Co Ltd.
Malta Air Traffic Services Ltd. (MATS)
Malta Statistics Authority
Tax Compliance Unit
Financial Intelligence Analysis Unit
Collective Bargaining Unit
Malta National Laboratory
MGI/MIMCOL
Malta Industrial Parks Ltd.
Notary to Government
Joint Office
Government Property Division
Privatisation Unit
Malta Enterprise
Commerce Division
Consumer and Competitive Division
Malta Standards Authority
Permanent Secretary’s Office / Director Corporate Services
Organisation for the Integration and Welfare of Asylum Seekers (OIWAS)
Police Department
Civil Protection
Correctional Services
Attorney General
Judicial
Malta Arbitration Centre
Data Protection Commission
B
For the purposes of these regulations –
“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;
“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;
“candidate concerned” means a candidate who has not
yet received information from a contracting authority about
the rejection of his application before the notification of the
contract award decision to the tenderer concerned.
“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 Contracts Committee” means the
Committee set up in terms of regulation 8(1)(b) with the
purpose of making definite recommendations for the award of
public contracts whose value does not exceed €120,000;
“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(a);
“Ineffectiveness” means a contract awarded illegally or
when the contracting procedure was not followed correctly;
“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;
“precontractual remedy” means a remedy sought from
the Director of Contracts or from the Public Contracts Review
Board following a decision taken prior to the date of the
closing of the tender;
“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 regulations
relating to the Public Procurement of Entities operating in
Water, Energy, Transport, Postal Services Sector, 2005;
L.N. 178 of 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 7 and 8. A
public contract having as its object both products and services
within the scope of Schedules 7 and 8 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 7 and 8 and including activities within
the meaning of Schedule 6 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 6, 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;
“Review Board” means the board defined in regulation
“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;
“tenderers concerned” shall mean tenderers who have
not yet been definitely excluded. An exclusion is definitive if
it has been notified to the tenderers concerned and has either
been considered lawful by the Review Board or can no longer
be subject to a review procedure;
“third country’’ means a state not being a member of the
European Union;
“thresholds’’ means the amounts listed in Schedule 9 and
determined in accordance with regulation 11;
“VAT” means value added tax under the Value Added
Tax Act; Cap 406.
“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.
Contracting Authorities falling within the competence of the Department of Contracts
Permanent Secretary’s Office / Department of 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
Malta Tourism Authority
Local Councils Department
Broadcasting Authority
Industrial Projects and Services Ltd.
Malta Environment and Planning Authority
Permanent Secretary’s Office / Department of Corporate Services
International Institute on Ageing
Mediterranean Academy for Diplomatic Studies
Permanent Secretary’s Office / Department of Corporate Services
Customer Services
Projects and Development
Permanent Secretary’s Office / Department of Corporate Services
Civil Aviation
Malta Communications Authority
Malta Maritime Authority
Malta Transport Authority
Water Services Corporation
Enemalta Corporation
Public Registry
Land Registry
Civil Registration
Permanent Secretary’s Office / Department of Corporate Services
Agriculture Services and Rural Development
Food and Veterinary Services
Fisheries and Conservation Control
Environment
Waste Serve Malta Ltd.
Works Division / Finance and Administration
Operating Units
Construction and Maintenance
Manufacturing and Services
Malta Council For Science and Technology
Building and Engineering
Building Construction Industry Department
Cleaning Department
Oil Exploration
Malta Resources Authority
Building Industry Consultative Council
B
MINISTRY OF EDUCATION,
Permanent Secretary’s Office / Department of Corporate Services
CULTURE, YOUTH AND SPORT
Directorate for Educational Services
Directorate for Quality and Standards in Education
Department of Regulatory Compliance
Directorate for EU and International Affairs
Libraries
National Archives
Examinations
Junior College
Malta College of Arts, Science and Technology
University of Malta
Foundation For Tomorrow’s Schools
Foundation For Educational Services
Institute For Tourism Studies
Kunsill Malti Ghall-Isports
National Pool tal-Qroqq
Heritage Malta
National Council for Culture and the Arts
St James Cavalier Creativity Centre
National Orchestra Ltd.
Manoel Theatre
Mediterranean Conference Centre
Superintendence of Cultural Heritage
Fondazzjoni Patrimonju Malti
National Commission for Higher Education
European Union Programmes Agency
Maltese National Commission for UNESCO
Public Broadcasting Services Ltd.
Permanent Secretary’s Office
Social Security
Benefit Fraud and Investigations
Social Welfare Standards
Housing Authority
Foundation For Social Welfare Services
Sedqa
Appogg
Sapport
Access
National Commission For Persons with Disability
Health
Elderly and Community Care
Foundation For Medical Services
Zammit Clapp Hospital
Mater Dei Hospital
Mount Carmel Hospital
Medicines Authority
Welfare Committee
Cooperatives Board
Industrial and Employment Relations
Employment and Training Corporation
Occupational Health and Safety Authority
Commission for the Promotion of Equality for Men and Women
Office of the Commissioner for Children
Office of the Commissioner for Voluntary Organisations
Commission on Domestic Violence
National Commission on the abuse of drugs, alcohol and other dependencies
National Commission for the Family
National Employment Authority
National Blood Transfusion Centre
B
MINISTRY OF FINANCE, THE ECONOMY
Permanent Secretary’s Office / Department of Corporate Services
AND INVESTMENT
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
Gozo Channel Co Ltd.
Malta Air Traffic Services Ltd. (MATS)
Malta Statistics Authority
Tax Compliance Unit
Financial Intelligence Analysis Unit
Collective Bargaining Unit
Malta National Laboratory
Malta Industrial Parks Ltd.
Notary to Government
Joint Office
Government Property Division
Privatisation Unit
Malta Enterprise
Commerce Division
Consumer and Competitive Division
Malta Standards Authority
Permanent Secretary’s Office / Director Corporate Services
Organisation for the Integration and Welfare of Asylum Seekers (OIWAS)
Police Department
Civil Protection
Correctional Services
Attorney General
Judicial
Malta Arbitration Centre
Data Protection Commission
B
These regulations shall provide for the regulation of
public contracts awarded by contracting authorities listed in
Schedule 1 and categorised in Schedule 2, Schedule 3, Schedule 4
and Schedule 5 on the coordination of procedures for the award of
public works contracts, public supply contracts, works concessions,
and public service contracts, unless such contracts are excluded in
accordance with Regulation 16 of these regulations. Contracting
authorities not specifically listed in Schedule 1 shall be deemed for
the purpose of these regulations to be included in Schedule 2.
List of Contracting Authorities who shall administer their own public procurement in accordance with the
provisions of these Regulations
Local Councils
OFFICE OF THE PRIME MINISTER
MINISTRY FOR INFRASTRUCTURE,
Malta Government Technology Investments Limited (MGTIL)
TRANSPORT & COMMUNICATIONS
Grand Harbour Regeneration Corporation P.L.C.
Malta Information Technology Agency (MITA)
MINISTRY FOR RESOURCES AND RURAL
EuroMedITI Ltd.
AFFAIRS
MINISTRY OF FINANCE, THE ECONOMY
MGI/MIMCOL
AND INVESTMENT
Malta Air Traffic Services Limited (MATS)
B
(1) Contracting authorities shall ensure that there is no
discrimination between economic operators, and that all economic
operators are treated equally and transparently in all calls for
tenders 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.
List of Central Government Authorities
MINISTRY OF FINANCE, THE ECONOMY
Contracts Department
AND INVESTMENT
B
(1) There shall be a Director of Contracts who shall Director of Contracts.
be responsible for the running of the Department of Contracts and
generally for the administration of the procurement procedures as
laid down in these regulations.
(2) In the exercise of his functions, the Director of
Contracts and his immediate family shall not be held personally
liable for any act or omission done in good faith. For the purpose
of this sub-regulation “immediate family” shall mean the spouse
and children of the Director.
List of Contracting Authorities who can publish tenders without vetting by the
Department of Contracts
Enemalta Corporation
Water Services Corporation
Malta Maritime Authority
(1) Unless otherwise provided for in these regulations,
it shall be the function of the Director of Contracts
(a) to ensure that these regulations are observed by all
parties involved
Provided that contracting authorities shall be responsible
for the implementation of the provisions of the contract
Provided further that any penalties which ensue due to
decisions taken by a contracting authority shall be within the
responsibility of the contracting authority concerned;
(b) to establish and regulate the procedure to be
followed during meetings of the Contracts Committee,
Departmental 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;
(c) 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
€120,000 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;
(2) In relation to tenders issued under Part IV and
Part V, in addition to paragraph (a), 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 consider the cancellation of the tender in the
event that the evaluation process has not been concluded by
the end of the validity period of the submitted bids; any non
conclusion of the evaluation process by the end of the second
extension to the validity period will automatically lead to the
cancellation of the tender
Provided that the Director shall consult the General
Contracts Committee for its opinion
Provided further that should the Contracts
Committee not agree with the recommendation of the
Director, the decision of the Director may be referred to
the Minister for his approval;
(d) 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;
(e) 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;
(f) to vet and approve, with or without modification,
tender documents before the same are issued and published;
(g) to approve, where appropriate, as provided in Part
VIII, variations which affect the original values of contracts
by more than 5 per cent;
(h) to approve extensions in the duration of contracts
awarded by him if he considers that circumstances so
warrant in the public interest and specific provision for such
extensions is made in the tender document;
(i) 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;
(j) to institute and to defend any judicial or arbitral
proceedings that may be necessary in relation to any contract
awarded by him;
(k) (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;
(l) to make regulations to award tenders in the name
and on behalf of contracting authorities listed in Schedule 2,
including the case of an association of authorities of which
such contracting authority is a member
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
Provided further that regulations affecting the
award of tenders that may be governed by procedures
deviating from these regulations shall be published by a
notice in the Gazette;
(m) 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.
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
B
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) The Department of Contracts shall be responsible
for the provision of pre-contractual remedies to candidates and
tenderers and any person having or having had an interest in
obtaining a particular public contract in relation to all public
contracts having a value of less than €120,000. Such remedies
shall be provided by the Director of Contracts or by any other
official within the Department of Contracts duly authorized by the
(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 person having or having
had an interest in obtaining a particular public 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) 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 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(1)
Subject
1. Maintenance and Repair Services
Repair services of tarpaulins and camping equipment
Repair services of nets and ropework
Repair and maintenance services of tanks, reservoirs and
containers of metal
Repair and maintenance services of central heating
boilers
Installation services of steam generators, except central
heating hot water boilers, including related pipe system
Repair and maintenance services of steam generators,
except central heating hot water boilers
Installation services of engines and turbines, except
aircraft, vehicle and cycle engines
Repair and maintenance services of engines and
turbines, except aircraft, vehicle and cycle engines
Installation services of pumps and compressors
Repair and maintenance services of pumps and
compressors
Repair and maintenance services of taps and valves
Installation services of furnaces and furnace burners
Installation services of furnaces and furnace burners
Installation services of furnaces and furnace burners
Installation services of lifting and handling equipment,
except of lifts and escalators
Repair and maintenance services of furnaces and
furnace burners
Repair and maintenance services of lifting and handling
equipment
Installation services of non-domestic cooling and
ventilation equipment
Repair and maintenance services of non-domestic
cooling and ventilation equipment
Installation services of other general purpose machinery
n.e.c.
Repair and maintenance services of other general
purpose machinery n.e.c.
Installation
services
of
agricultural
and
forestry
machinery
Repair and maintenance services of agricultural and
forestry machinery
Installation services of machine-tools
Repair and maintenance services of machine-tools
Installation services of machinery for metallurgy
Repair and maintenance services of machinery for
metallurgy
Installation services of machinery for mining, quarrying
and construction
Repair and maintenance services of machinery for
mining, quarrying and construction
Installation services of machinery for food, beverage
and tobacco processing
Repair and maintenance services of machinery for food,
beverage and tobacco processing
Installation services of machinery for textile, apparel
and leather production
Repair and maintenance services of machinery for
textile, apparel and leather production
Installation services of machinery for paper and
paperboard production
Repair and maintenance services of machinery for paper
and paperboard production
Installation services of other special purpose machinery
n.e.c.
Repair and maintenance services of other special
purpose machinery n.e.c.
Installation services of weapons and weapons systems
Repair and maintenance services of weapons and
weapons systems
Installation services of office machinery
Installation services of computers and other information
processing equipment
Installation services of electric motors, generators and
transformers
Repair, maintenance and rewinding services of electric
motors, generators and transformers
Installation services of electricity distribution and
control apparatus
Repair and maintenance services of electricity
distribution and control apparatus
Installation services of other electrical equipment n.e.c.,
except electrical signalling equipment for motorways,
roads and airports
Repair and maintenance services of other electrical
equipment n.e.c.
Installation services of television and radio transmitters
Repair and maintenance services of television and radio
transmitters
Installation services of professional radio, television,
sound and video equipment
Repair and maintenance services of professional radio,
television, sound and video equipment
Installation services of medical and surgical equipment
and apparatus
Repair and maintenance services of medical and surgical
equipment and apparatus
Installation services of instruments and apparatus for
measuring, checking, testing, navigating and other
purposes
Repair and maintenance services of instruments and
apparatus for measuring, checking, testing, navigating
Repair and maintenance services of professional
photographic, cinematographic and optical instruments
Installation services of industrial time measure
instruments and apparatus
Repair and maintenance services of industrial time
measure instruments and apparatus
Repair and maintenance services of ships and floating
platforms and structures
Reconditioning of ships
Demolition of ships
Repair and maintenance services of pleasure and
sporting boats
Repair and maintenance services of railway and
tramway locomotives and rolling stock
Reconditioning of railway and tramway locomotives
and rolling stock
Repair and maintenance services of aircraft and aircraft
engines
Reconditioning of aircraft
Repair and maintenance services of musical instruments
Maintenance and repair services of motor vehicles
Maintenance and repair services of motorcycles
Repair services of personal and household goods
2. Land transportation services, (1) including
armoured car services and courier services, except
transport of mail
Urban and suburban regular passenger transportation,
other than by railways
Inter-urban passenger transportation, other than by
railways
Other scheduled passenger land transportation
Taxi services and rental services of passenger cars with
operator
Other land passenger transportation services
Freight transportation services by road, specialized
vehicles
Transportation of other freight
Rental services of commercial freight vehicles with
operator
Courier services other than national post services
Armoured car services
3. Air transport services of passengers and freight,
except transport of mail
Scheduled passenger transportation services by air
Transportation of containerized freight, scheduled
Transportation of other freight by air, scheduled
Non-scheduled passenger transportation services by air
Non-scheduled freight transportation services by air
Rental services of aircrafts with crew
Space transportation services
4. Transport of mail by land and air
Mail transportation
Mail transportation by air, scheduled
Non-scheduled freight transportation services by air
5. Telecommunications services (2)
Data and message transmitting services
Other telecommunications services
6. Financial services
(a) insurance services
(b) banking and investment services (3)
Insurance and pension funding
services,
except
compulsory social security services
Services auxiliary to insurance and pension funding
Financial intermediation services, except insurance and
pension funding services
Services auxiliary to financial intermediation, except to
insurance and pension funding
7. Computer and related services
Hardware consultancy services
Programming services of packaged software products
Software consultancy and other supply services
Data processing services
Database services
Maintenance and repair services of office, accounting
and computing machinery
Other computer-related services
8. Research &Development services (4)
Research and development services
9. Accounting, auditing and book-keeping services
Accounting and auditing services
Book-keeping services, except tax returns
10. Market research and public opinion polling
services
Market research and public opinion polling services
11. Management consultant services (5) and related
services
Business and management consultancy services
Management holdings services
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
Architectural services
Engineering services
Integrated engineering services for turnkey projects
Urban planning and landscape architectural services
Project management services related to construction and
civil engineering works
Engineering-related scientific and 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 contract basis
822a
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 newspaper
884i
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
Sewage and Refuse disposal services, sanitation and similar
940a
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
accrueexclusively 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.
B
(1) Without prejudice to the provisions of the
Interpretation Act and to any order or direction given by the
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 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.
Services within the meaning of regulation 56(2)
CPA
Subject
CPC
Reference No
Reference No
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 transportation
711d
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
There shall be
(a) (i) 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;
(ii) 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;
(iii) 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; and
(iv) the provisions of Part IX shall apply to the
General Contracts Committee; and
(b) a Departmental Contracts Committee, who shall
be composed of three members
(i) a Chairman, who shall be the Director
Corporate Services, or his representative;
(ii) a member appointed by the Permanent
Secretary of the concerned ministry; and
(iii) a member representing the Director of
Contracts, which member may also be a member of the
General Contracts Committee.
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) !125,000 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
B
(1) Where the Prime Minister determines that the Special Contracts
adjudication of tenders for the award of any particular contract Committee.
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.
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) €125,000 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 11;
(b)
€193,000
-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 11;
-For public service contracts awarded by any contracting authority
in respect of the services listed in Category 8 of Schedule 7, Category 5
telecommunication services CPC reference 7524, 7525 and 7526 and, or
the services listed in Schedule 8.
(c) €4,845,000 for public works contracts.
B
(1) The meetings of the Contracts 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 33, 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.
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
B
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.
B
(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;
B
(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.
B
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 10 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 10 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
B
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
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
B
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
1. Publication of notices
(a) Notices referred to in regulations 48, 70(3) and (9) and 57(6) must
be sent by the contracting authorities to the Office for Official Publications
of the European Communities in the format established by implementing
measures to be adopted by the Commission in accordance with the procedure
referred to in Article 77(2) of European Union Directive 2004/18/EC. 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), paragraph (a), 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”.
B
The Minister shall, from time to time by regulations,
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.
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.
B
€12.67
Where a contracting authority intends to issue a call for
tenders leading to the award of a public contract, the estimated
value of which falls within the provisions of regulation 15(b)
and (c), then 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 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 and of the Special Contracts
Committee 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.
(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
provisions of these regulations, public contracts –
(a) the estimated value of which does not exceed
€120,000, shall be subject to Part II;
(b) the estimated value of which exceeds €120,000
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 Rules for calculating
authority shall consider the estimated value of remuneration due applicable
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 where
the aggregate value of the lots is equal to or exceeds the thresholds
laid down in terms of regulation 11, the regulations applicable to
public contracts whose value exceeds the threshold shall apply to
the award of each lot
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 €80,000 for services and
€1,000,000 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 and in the event that the aggregate value
of the lots is equal to or exceeds the thresholds laid down in
terms of regulation 12, the regulations applicable to public
contracts whose value exceeds the threshold shall apply to the
award of each lot. However, contracting authorities may treat
the separate lots as separate contracts for lots the estimated
value of which is less than €80,000 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) 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
(a) 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;
(b) 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.
(6) Where a public services contract does not specify
a total price, the basis for calculating the estimated value of the
public 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
and other types of remuneration;
(b) as regards banking and other financial services, the
fees, commissions, interest and other types of remuneration;
(c) as regards contracts which involve design, the fee
or commission payable and other types of remuneration.
(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 work by the signatory
States or services intended for the 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
Provided that contracting authorities shall have the option of
subjecting their decisions with respect to
(a)
the rejection or admission of candidates to a
restricted or negotiated procedure leading to the award of a public
service concession contracts; and, or.
(b) the discarding or failure to discard of a tender
submitted in reply to a call for tenders for the award of a
public service concession contract when the tenders are
submitted in separate packages; and, or
(c) the rejection or award of a tender submitted
in reply for a call for tenders for the award of a public
service concession contract or the award of a public service
concession contract, to the review’s procedure set forth in
Parts XII and XIII, which procedures shall be subject to any
amendments as may be stipulated by the contracting authority
in the call for competition preceding a restricted or negotiated
procedure or in the call for tenders.
(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
€120,000
Where the estimated value of a public contract does not
exceed €120,000 only the relevant provisions of Part I and the
whole of Part II shall apply.
(1) Without prejudice to sub-regulations (2) and (3)
hereof, all public contracts, the estimated value of which does
not exceed €120,000, 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
(2) Following the evaluation of a tender by the
Departmental Adjudicating Board, an evaluation report shall be
drawn up and communicated to the Departmental Contracts
Committee.
(3) The Departmental Contracts Committee shall
make definite recommendations for the award of the contract, and
a copy of its recommendation shall be forwarded to the Director of
Contracts.
(1) Except where the Minister otherwise directs or Procurement
approves, the procedure for the procurement of equipment, stores, procedures
works or services by the contracting authorities listed in Schedule authorities.
2 shall be as follows
(a) where the estimated value does not exceed €2,500,
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 €2,500 but does
not exceed €6,000, 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 €25,000;
(d) where the estimated value exceeds €6,000 but
not €120,000, the equipment, stores, works or services may
be procured after a departmental call for tenders or after
publishing a call for quotations in the Gazette. The tenders
and quotations 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 28 shall apply
for the adjudication of the tenders and quotations submitted
Provided that the Minister may by regulations allow
limits higher than €120,000 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 €6,000 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 €12,000 and is issued by an authority listed in Schedule
1, any tenderer or candidate concerned shall have a right to make a
complaint to the Review Board in accordance with this regulation.
(2) (a) 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. The
contracting authority shall, by electronic means or by fax, inform
the tenderer or candidate concerned of the publication of the award.
The contracting authority shall be precluded from concluding the
contract during the period allowed for the submission of appeals.
(b) The award process shall be completely suspended
if an appeal is eventually submitted.
(3) Any tenderer or candidate concerned who is
aggrieved by the award indicated by the contract authority may,
within five working days from the publication of the notice, file
a letter of objection, together with a deposit, with the contracting
authority, clearly setting forth any reason for his complaint. The
deposit to be paid in respect of tenders valued at less than €47,000
should be €400 while those between €47,000 and €120,000
should be 0.5% of the estimated value of the tender. 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.
(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 Review Board
who shall examine the matter in a fair and equitable manner. In its
deliberation the Review Board shall have the authority to obtain in
any manner it deems appropriate, any other information not already
provided by the contracting authority. The Review Board shall
determine the complaint by upholding or rejecting it. The written
decision of the Review Board shall be affixed on the notice board
of the contracting authority and copies thereof shall be forwarded
to the Director of Contracts and all the parties involved.
(5) The tenderer or candidate concerned who is not
satisfied with the decision granted by the Review Board may refer
the matter to the Court of Appeal (Inferior Jurisdiction) in terms
of article 41(6) of the Code of Organization and Civil Procedure
within a period of sixty days. Such recourse however may not
delay the Head of the Contracting Authority from implementing
the Review Board’s decision.
(6) 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.
(7) 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
€120,000 but does not exceed the thresholds
(1) In addition to this Part, Part I, Part IV and
regulations 39 to 41 also apply to public contracts where the
estimated value exceeds €120,000 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 €120,000 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
€120,000
This Part shall apply to all public contracts whose value
is in excess of €120,000.
(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 48, 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 59, 60, 66, 67, 72 and 73 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 and Schedule 5 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 50, select the candidates whom they will
invite to submit a tender or to negotiate.
(1)
Contracting authorities may conclude framework
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 28.
(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 systems.
(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 45.
(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 dynamic purchasing systems 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 Award criteria.
criteria laid down in this regulation and regulation 29, taking
into account regulation 47, after the suitability of the economic
operators not excluded under regulations 50 and 52(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 36, 51, 52
and 53 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 51 and 52. 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 subject matter
of 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 which can be expressed by providing for a range
with an appropriate maximum spread
Provided 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
tenders which appear to be abnormally low in relation to the
activity to be carried out
Provided that the contracting authority shall, before
it may reject those tenders, request in writing details of the
constituent elements of the tender which it considers relevant and
shall verify those constituent elements by consulting the tenderer
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 Use of electronic
auctions.
(2) (a) In open, restricted or negotiated procedures
in the case referred to in regulation 39(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 26(2)(b) and on the opening for competition of
contracts to be awarded under the dynamic purchasing system
referred to in regulation 27.
(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
28 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
consists of separate packages, the procedure set out in Part XII
shall be followed.
(1) There shall be established a Public Contracts
Review Board to be known as the Review 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 any authority listed in
Schedule 1 and whose value exceeds €12,000, in accordance with
the procedures laid down in these regulations.
(3) Every contracting authority listed in Schedule 1
shall indicate in its tender documents that the award of the contract
is subject to the review 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.
(4) Without prejudice to regulation 17(2), it shall
likewise be the function of the Board to hear and determine
complaints submitted by any person having or having had an
interest in obtaining a public service concession contract when
recourse to the Board is so specified in the call for tender.
(1) Contracting authorities listed in Schedule 3 Statistical and other
shall, by not later than June of each year, send to the Director a
report in relation to each public contract awarded by it during the
previous calendar year as well as the number and total value of
contracts awarded pursuant to the derogations to the World Trade
Organisation Agreement on Government Procurement. This report
shall include, apart from the details contained in regulation 44(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 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 59, 60, 66, 66, 72 and 73, 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 tenders.
with publication of a contract notice and in the competitive
dialogue 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 nondiscriminatory 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 48(4),
59(4), 66(4) and 72(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 by negotiated procedure, after prior publication of an EU
contract notice in the cases mentioned in regulations 59, 66 and 72.
(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 60, 67
and 73.
(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 and Schedule 5
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
identify the tenderer who submitted the most economic
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 41.
(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 39(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 IA in Schedule 10, 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 10, 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 10, 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 44, 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 39(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 10; 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 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 would have prior to dispatch
made 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 71 shall
apply.
The calculation of the time limits under this Part shall
be made in accordance with Council Regulation (EEC, Euratom)
No 1182/71 of 3 June 1971 determining the rules applicable to
periods, dates and time limits.
(1) (a) In restricted procedures, competitive dialogue Invitation and
procedures and negotiated procedures with publication of a information.
contract notice within the meaning of regulation 39(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 sub-paragraph
(i), when they are made directly available by electronic
means in accordance with regulation 41(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 otheradjoining
documents to be submitted, either in support of
verifiable declarations by the tenderer in accordance
with regulation 28(1) and (2) and regulation 38 or to
supplement the information referred to in that regulation,
and under the conditions laid down in regulations 51 and
52;
(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 provisions of regulation 48, 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.
(2) (a) 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
(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 46(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
(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 48 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
nondiscriminatory, 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) contracting authorities 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) contracting authorities may introduce or maintain
voluntary accreditation schemes aiming at enhanced levels of
certification service provision for such 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 50 to 53 and
regulation 36 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
specifications for public contracts and these shall be included
in the 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, national or multi-national eco-labels, or by
any other eco-label, provided that
(a) those specifications are appropriate to define the
characteristics of the supplies or services that are the object of
the contract;
(b) the requirements for the label are drawn up on the
basis of scientific information;
(c) 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
(d) 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
“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;
“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;
“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
(a) International standard - a standard adopted
by an international standards organisation and made
available to the general public;
(b) European standard - a standard adopted by a
European standards organisation and made available to
the general public;
(c) National standard - a standard adopted by a
national standards organisation and made available to
the general public;
“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;
“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;
“technical reference” means any product produced by
European standardisation bodies, other than official standards,
according to procedures adopted for the development of
market needs;
“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 that of the most economically advantageous tender, contracting
authorities may authorise tenderers to submit variants.
(2) (a) Contracting authorities shall indicate in the
contract notice whether or not they authorise variants; variants
shall not be authorised without this indication.
( b ) C o n t r a c t i n g a u t h o r i t i e s a u t h o r i s i n g
variants shall state in the contract documents the minimum
requirements to be met by the variants and any specific
requirements for their presentation.
(c) Only variants meeting the minimum
requirements 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
contracting authorities consider that the use of the open or
restricted 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 28, 36, 50, 51, 52 and 53, 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
28(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
identify 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 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 10
(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 12 and 16, is equal to or greater than
€700,000. 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 7 which they
intend to award over the following twelve months, where
such estimated value, taking into account regulations 12 and
16, is equal to or greater than €700,000;
(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
12, taking into account regulation16.
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 10.
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 41(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 39, by negotiated
procedure with the publication of a contract notice or, under the
conditions laid down in regulation 48, 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 26 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 49 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 8, 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 10 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 10, paragraph 3, or by other means. In the event of
recourse to the accelerated procedure set out in regulation 41(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 10, 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
10. (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 10, 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 10, 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 41(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 10, 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
ofbankruptcy, 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 in accordance with the laws of Malta;
(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.
(5) The Director of Contracts shall have the authority
to implement a mechanism for the black listing of economic
operators.
(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 undertaking by those entities to that effect.
(3) Under the same conditions, a group of economic
operators as referred to in regulation 32 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
economic operators shall be assessed and examined in accordance
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 32 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 51 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 50, and the
matters referred to in regulations 51 and 52.
(1) The Director of Contracts shall prepare and Report of
forward to the Commission a statistical report on the contracts Commission.
awarded by 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 39 and the number and value of contracts awarded
to each Member State and to non-Member State countries
as well as the number and total value of contracts awarded
pursuant to the derogations to the World Trade Organisation
Agreement on Government Procurement.
PART VI
Types of Contract
Section A
Public services contracts
(1) Public services contracts and the organisation Scope.
of 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 €133,000 net of VAT, issued in connection with
a subsidised public works contract in terms of regulation 70(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 6 and services
listed in Schedules 7 and 8, if the works are only incidental to the
services being the principal object of the contract.
(4) (a) Public contracts which have as their object
the services listed in Schedule 7 shall be awarded in accordance
with these regulations.
(b) Public contracts which have as their object
the services listed in Schedule 8 shall be subject solely to
regulations 46 and 49(4).
(c) Contracts which have as their object services
listed both in Schedule 6 and in Schedule 8 shall be awarded
in accordance with these regulations where the value of the
services listed in Schedule 7 is greater than the value of the
services listed in Schedule 8. In other cases, contracts shall be
awarded in accordance with regulations 46 and 49(4).
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.
(1) Where a public service contract is to be awarded
in respect of a service classified under Schedule 7, 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 8. 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 8 it shall be classified as being for
services classified under Schedule 6 if the estimated value of the
services classified under Schedule 7 exceeds the estimated value of
the services classified under Schedule 8.
(1) The rules for the organisation of design contests Design contracts.
as 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 €125,000;
(b) contracting authorities which are not central
government authorities, starting from a threshold equal to or
greater than €206,000;
(c) by all the contracting authorities, starting from a
threshold equal to or greater than €206,000 where contests
concern services in category 8 of Schedule 7, 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 8.
(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 60(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
10 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 45(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 12;
(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 irregular tenders or the submission
of tenders which are unacceptable in terms of regulations 27,
30(1), 31, 46, 60 and 62 in response to an open or restricted
procedure or a competitive dialogue 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 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 7, 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 by negotiated procedure without prior publication of an
EU contract 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;
(f) 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 Entitlement to carry
Member State in which they are established, are entitled to carry out a service.
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 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 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
supply contracts, by negotiated procedure after prior publication
of an EU contract notice, in the event of irregular tenders or
the submission of tenders which are unacceptable in terms of
regulations 27, 30(1), 31, 46, 60 and 62 in response to an open
or restricted procedure or a competitive dialogue 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
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
pursuant to regulation 46 may not reject a variant on the sole
grounds 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
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
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 €5,150,000 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 €5,150,000 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 10 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 and, except where regulation 40(4)
applies, regulation 40(6) 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
€5,150,000. 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
(b) Notices shall contain the information referred
to in Annex I C of Schedule 10 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 ) R e g u l a t i o n 4 8 ( 1 2 ) o n t h e v o l u n t a r y
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
contracts by negotiated procedure, after prior publication of an EU
contract notice
(a) in the event of irregular tenders or the submission
of tenders which are unacceptable in terms of regulations 27,
30(1), 31, 46, 60 and 62 in response to an open or restricted
procedure or a competitive dialogue 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 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 construction of a subsidised housing scheme whose
size and complexity, and the estimated duration of the work
involved, require 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 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 4, 39, 40, 43(2), 43(3), 43(4), 44, 48 and 49
to 52.
(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 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 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.
PART VII
Public procurement of entities operating in the water, energy,
transport and postal services sector
The public procurement of entities operating in Scope.
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) In granting or refusing such a request for variation,
the Director shall take account of whether any force majeure, or
unforeseen or unforeseeable events prevail and shall specify
whether such a variation could have been avoided. The Director
shall determine the procedure to be followed in future by the
contracting authority in order to avoid the necessity of variations.
(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
indicated in regulation 77(1) on contracts awarded by contracting
authorities listed in Schedule 3, shall require the prior approval of
the 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. Such approval
shall be granted only where any force majeure, unforeseen or
unforeseeable events prevail
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 8 and 9, shall be composed of the Director of Contracts,
who shall be 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 Review 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 tenders whose estimated value exceeds €47,000.
(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 Separate packages in
shall ensure that for all tenders awarded by the open or restricted
procedures with an estimated value of over €2,000,000 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 and sealed 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 Review Board within ten working
days from the date of notification of the decision, which complaint
shall be communicated by the Secretary of the Review Board to
the Department of Contracts at once. The complaint submitted
to the Review Board shall be accompanied by a deposit of 0.5%
of the estimated value of the tender as submitted by the tenderer,
which deposit shall only be refundable if the Review 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
€580 or more than €58,000.
(5) The review is to be effected by the Public Contracts
Review 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
reexamination 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
Review 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 Review 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 have the right to have
recourse to the procedure for appeals as provided for in Part XIII
when the offer reaches the final stage of the award procedure, that
is, the opening and the publication of the financial proposals
Provided that any rights granted to tenderers by virtue of
regulation 84(6) shall also apply to appeals decided by the Review
Board under this Part
Provided further that any tenderers whose complaint have
been heard in terms of regulation 82(4) may request a substitute
of the members of the Review Board when appealing in terms of
regulation 82 (10) above.
PART XIII
Procedure for the submission of appeals
(1) Any tenderer or candidate concerned, or any
person, having or having had an interest or who has been harmed
or risks being harmed by an alleged infringement or by any
decision taken including a proposed award in obtaining a contract
or a cancellation of a call for tender, may file a notice of objection
with the Review Board.
The notice shall be filed within ten calendar days following
the date on which the Contracting Authority has by fax or other
electronic means sent its proposed award decision.
The communication to each tenderer of the proposed award
shall be accompanied by a summary of the relevant reasons relating
to the rejection of the tender as set out in regulation 43(3) of these
regulations, and by a precise statement of the exact standstill
period.
The notice of objection shall only be valid if accompanied by
a deposit equivalent to one per cent of the estimated value of the
tender submitted by the tenderer, provided that in no case shall the
deposit be less than €230 or more than €58,000. The Secretary
of the Review Board 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 ten
calendar 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 the Review
Board not later than the next working day following its filing.
(c) Within three working days of the publication of
the replies the Secretary of the Review Board shall prepare a
report (the Analysis Report) analysing the letter of objection.
This report shall be circulated to the persons who file an
objection. After the preparatory process is duly completed,
the Head of the contracting authority shall forward to the
Chairman of the Review Board all documentation pertaining
to the call for tenders in question including files, tenders
submitted, copies of deposit receipts, any motivated letter, etc
who shall then proceed as stipulated in Part XIV.
(d) The Director or the Head of the contracting
authority shall publish a copy of the decision of the Review
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 by the
Secretary of the Board to the complaining tenderer, any
persons who had registered or had an implied interest, the
Director of Contracts and to the contracting authority
concerned.
PART XIV
Public Contracts Review Board
(1) The Review Board established in terms of
regulation 33(1) shall be responsible for addressing
(a) pre-contractual concerns raised by candidates and
any person having or having had an interest in obtaining a
particular public contract in relation to all public contracts
exceeding €12,000;
(b) complaints raised in terms of regulation 20 and
the procedure established therein by tenderers and candidates
concerned following the publication by a contracting authority
of a notice relating to an award of a contract;
(c) complaints raised by tenderers or candidates
concerned relating to a contract award decision or a
cancellation of a contract;
(d) complaints raised in terms of regulation 33(4).
(2) In addressing complaints under sub-regulation (1),
the Review Board 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 contracting procedure or the implementation of any
decision taken by the contracting authority;
(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) award damages to persons harmed by an
infringement on the submission of proof relating to the
damage sustained
Provided that the Review Board may decide not to grant
interim measures, if after having taken into consideration the
probable consequences of the measures for all interests likely
to be harmed, together with the public interest involved, the
negative consequences of the measures are to exceed their
benefits.
(3) (a) In its review, and unless otherwise specified in
this regulation, the Board shall consider a contract to be ineffective,
and thus shall declare the contract as null from the date of the
decision by the Review Board
(i) if the contracting authority has awarded a
contract without prior publication of a contract notice in
the Official Journal of the European Union without this
being permissible in accordance with Direction 2004/18/
EC;
(ii) in the case of an infringement of regulation
84(1); or when a contracting authority notwithstanding
an appeal lodged before the Review Board, concludes
the contract before a final decision is given, so long as
this infringement has deprived the tenderer applying
for review of the possibility to pursue pre-contractual
remedies where such an infringement is combined with
an infringement of these regulations, if that infringement
has affected the chances of the tenderer applying for a
review to obtain the contract.
(b) The Review Board may, after having taken into
account all the relevant factors including the seriousness
of the infringement and the behaviour of the contracting
authority, in addition to a declaration of nullity in terms of
paragraph (a), impose fines on the contracting authority in the
amount of 1% of the tender value but not exceeding €1,000.
(4) In the event of a cancellation of a call for tenders,
the Board 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.
(5) The decision of the Board shall be rendered in
writing, it shall indicate the reasons upon which such decision was
taken, and it shall be notified to the interested parties.
(6) Any interested person who feels aggrieved by
a decision taken by the Board in terms of this regulation may,
refer the matter to the Court of Appeal (Inferior Jurisdiction) as
constituted in terms of article 41(6) of the Code of Organization
and Civil Procedure within a period of twenty days from the final
decision of the Review Board. Such recourse shall not however
delay the Director of Contracts or the Head of a contracting
authority from implementing the Review Board’s final decision
Provided that the Department of Contracts and a
contracting authority may only refer a matter to the Court of Appeal
(Inferior Jurisdiction) in relation to a decision taken by the Board
relating to paragraph (c) of subregulation (2) and subregulation (3).
(7) Without prejudice to any other provision of these
Regulations, the Review Board shall not receive complaints which
are filed later than twenty days from the day following the date of
the conclusion of the contract.
(8) (a) The Review Board shall be 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.
(b) The President may appoint a substitute, or such
number of substitutes, as Chairman and as members of the
Review Board to act on different Review Boards, in which
case the members shall serve for pre-determined periods of
time, in accordance with such distribution of duties, including
provisions for inability of members to serve and other
circumstances, as the President may establish.
(c) The Chairman of the Appeals Board may be
individually removed from office on the ground of proved
inability to perform the functions of that office (whether
arising from infirmity of body or mind or any other cause) or
proved misbehaviour.
(d) The Review Board shall be assisted by a Secretary.
(e) The Chairman or other member of the Board shall
be disqualified from hearing a review in such circumstances
as would disqualifying a judge in a civil suit, and in any such
case the chairman or member shall be substituted by another
person appointed for the purpose by the Prime Minister.
(f) A person shall be disqualified from being appointed
or continuing to be a member of the Review 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 Review Board.
(g) The members of the Review Board shall receive
such remuneration as the Prime Minister may determine.
(h) The members of the Review 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.
(i) The Review 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.
(j) The sessions of the Review 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.
(k) (i) The Chairman shall have the power to
determine the procedure for the hearing of all complaints
lodged with the Review Board and shall ensure that during the
public hearing all interested parties are given the opportunity
to make their case.
(ii) The Review Board shall have the power to
take such interim measures as it shall deem fit.
(l) Any member of the Review Board who may have a
direct or indirect interest in any contract which becomes the
subject of a complaint shall inform the Chairman in writing
of such interest in which case the member shall be precluded
from further participation in the hearing of the complaint.
(m) The Chairman shall appoint the public hearing
at the earliest possible date after the referral to him of the
Analysis Report in terms of regulation 83(2)(c) and the
relative documentation by the Head of the Contracting
Authority, and all public hearing sessions shall be concluded
within ten working days from the date of the first session.
(9) (a) In default of an appeal lodged in terms of
sub-regulation (6), the decision of the Review Board shall be final
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.
(b) The decision of the Board shall constitute an
executive title and may be enforced in terms of article 273 of the
Code of Organisation and Civil Procedure before a court of law.
(10) Decisions of the Review 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.
(11) Decisions of the Review Board shall be submitted
by the Chairman to the Director of Contracts or the contracting
authority in writing within three working days after the holding
of the last public session. Should the Review Board be unable,
for valid reasons, to meet this time-limit, the Prime Minister or a
person delegated by him shall extend the period in question if
such extension is considered warranted by the circumstances of the
case.
(12) All decisions taken by the Review Board shall
be rendered in writing. It shall contain all the facts and reasons
on which the Review 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.
(13) The Review 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.
(14) The Review Board shall by not later than six
months after the end of the financial year, make and submit to
the Minister a report dealing with the performance of the 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 Review Board.
PART XV
Miscellaneous
A tender which has been issued prior to the 31 December
2009 but whose award is granted on or after the 1 January 2010,
shall continue to be regulated by the laws which were in force
before the 1 January 2010
Provided that the procedure relating to review in terms of
subregulation (1) paragraphs (a) and (b) of regulation 84 shall
come into force on the 20 December 2009.
The Public Contracts Regulations, 2005 are hereby
revoked.
B
11.3
Motion picture and video tape production and related
961a
services
92.12
Motion picture or video tape distribution services
961b
92.13
Motion picture projection services
961c
92.2
Radio and television services
961d
92.31.2
Artistic and literary creation and interpretation services
961e
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 services
963a
963b
963c
92.6
Sporting services
964a
964b
92.7
Other recreational services
964c
964d
27. Other services