MT
296 tal-2010 - Regolamenti tal-2010 dwar il-Kuntratti Pubbliċi
Table of Provisions (100)
Statutory Text (100 Articles)
B
Suppliment tal-Gazzetta tal-Gvern ta’ Malta Nru. 18,596, 20 ta’ Mejju, 2010 B 3303
Taqsima B
€
€
€
Attivitajiet tal-Kuntratti tax-Xog]lijiet Pubbli`i
Servizzi skond it-tifsira tar-Regolament 57(1)
Servizzi skond it-tifsira tar-Regolament 57(2)
Valuri ta’ limiti stabbilit skond ir-Regolament 12
Avvi\i dwar kuntratti pubbli`i
Lista ta’ prodotti fil-qasam tad-difi\a
}ti[iet relatati ma’ Tag]mir biex ji[u ri`evuti Offerti b’mezzi
elettroni`i, Talbiet g]al Parte`ipazzjoni u Pjanti u Pro[etti fil-
Kompetizzjonijiet
Regolamenti tal-2010 dwar il-Kuntratti Pubbli`i
DISPO|IZZJONIJIET {ENERALI
Titolu u bidu fis-se]]
Tifsir
G]an
Ebda diskriminazzjoni u kunfidenzjalità
Direttur tal-Kuntratti
Funzjonijiet tad-Direttur tal-Kuntratti
Rimedji - Kompetenza tad-Dipartiment tal-Kuntratti
Diskrezzjoni li ssir riferenza
Kumitat tal-Kuntratti {enerali u Kumitat tal-Kuntratti
Dipartimentali
Kumitat tal-Kuntratti Spe`jali
Kumitat tal-Kuntratti
Limiti stabbiliti
}tie[a ta’ approvazzjoni qabel il-]ru[ u l-pubblikazzjoni ta’
offerti
Rapport annwali
Applikabilità
Regoli dwar il-kalkolu tal-valur stmat li japplika
Ebda applikabilità
REGOLI LI JIRREGOLAW KUNTRATTI PUBBLI~I LI L-
VALUR TAG}HOM MA JE~~EDIX MIJA U G}OXRIN
ELF EURO (€120,000)
Applikabilità
Skop
Pro`eduri dwar akkwisti pubbli`i g]al awtoritajiet kontraenti
Jedd li jsir ilment
REGOLI LI JIRREGOLAW KUNTRATTI PUBBLI~I LI L-
VALUR TAG}HOM JE~~EDI MIJA U G}OXRIN ELF
EURO (€120,000) I|DA MA JE~~EDIX IL-LIMITI
STABBILITI
Applikabilità
Pro`edura ta’ g]oti
REGOLI KOMUNI G}AL KUNTRATTI PUBBLI`I LI L-
VALUR TAG}HOM JE~~EDI MIJA U G}OXRIN ELF
EURO (€120,000)
Applikabilità
Pro`edura ta’ g]oti
Ftehim qafas
Sistemi dinami`i ta’ xiri
Kriterji dwar l-g]oti
Konsiderazzjonijiet spe`jali li jirrigwardaw regoli li jirregolaw
il-kriterji dwar l-g]oti
U\u ta’ bejg] bl-irkant elettroniku
Appaltar u kondizzjonjiet g]at-twettiq
Offerti kon[unti u fi grupp
Lottijiet separati
Bord ta’ Revi\joni
Rapporti statisti`i u rapporti o]ra
Listi uffi`jali
REGOLI LI JIRREGOLAW KUNTRATTI PUBBLI~I LI L-
VALUR TAG}HOM IKUN DAQS JEW JE~~EDI L-
LIMITU STABBILIT
Applikabilità
G]add ta’ offerenti
Pro`eduri negozjati
Termini ta’ \mien biex ji[u ri`evuti talbiet g]all-
parte`ipazzjoni kif ukoll offerti
Termini ta’ \mien minimi
Terminu g]al kuntratt ta’ kon`essjoni dwar xog]?lijiet
pubbli`i
Applikazzjoni tar-Regolament tal-Kunsill 1182/71
Stedina u informazzjoni
Komunikazzjoni
Spe`ifikazzjonijiet tekni`i
Elementi li jvarjaw
Djalogu kompetittiv
Avvi\i tal-UE
Kriterji ta’ g]a\la kwalitattiva
Prova tal-qag]da finanzjarja u ekonomika
Prova ta’ kapa`ità teknika
Tag]rif li jissupplimenta
Rapport lill-Kummissjoni
TIPI TA’ KUNTRATTI
Kuntratti ta’ servizzi pubbli`i
Skop
Applikazzjoni
Applikazzjoni fuq \ew[ stadji
Kompetizzjonijiet dwar id-disinni
Wara l-pubblikazzjoni minn qabel ta’ avvi\ dwar kuntratt tal-
UE
Ming]ajr pubblikazzjoni pre`edenti ta’ avvi\ dwar kuntratt tal-
UE
Tag]rif
~]id ta’ elementi li jvarjaw
Jedd li titwettaq attività ta’ servizzi
Pajji\i terzi
Kuntratti ta’ provvista pubblika
Skop
Wara pubblikazzjoni pre`edenti ta’ avvi\ dwar kuntratt tal-UE
Ming]ajr pubblikazzjoni pre`edenti ta’ avvi\ dwar kuntratt tal-
UE
~]id ta’ elementi li jvarjaw
Pajji\i terzi
Kuntratti ta’ xog]lijiet pubbli`i
Skop
Kon`essjoni ta’ xog]lijiet pubbli`i
Wara pubblikazzjoni pre`edenti
Ming]ajr pubblikazzjoni pre`edenti
Disinn u kostruzzjoni f’kuntratti ta’ djar pubbli`i
Tag]rif
Pajji\i terzi
TAQSIMA VII KUNTRATTI DWAR AKKWISTI PUBBLI~I TA’
ENTITAJIET LI JOPERAW FIS-SETTUR TAL-ILMA, L-
ENER{IJA, IT-TRASPORT U S-SERVIZZI POSTALI
Skop
TAQSIMA VIII ORDNIJIET TA’ VARJAZZJONI
Kuntratti mog]tija minn awtoritajiet elenkati fl-Iskeda 2
Kuntratti mog]tija minn awtoritajiet elenkati fl-Iskeda 3
TAQSIMA IX KUMITATI TAL-KUNTRATTI
Kumitati tal-Kuntratti
FUNZJONIJET TAL-KUMITATI TAL-KUNTRATTI
Funzjonijiet tal-Kumitati tal-Kuntratti
TAQSIMA XI KUMITATI G}ALL-AKKWISTI PUBBLI~I
Kumitati g]all-akkwisti pubbli`i
TAQSIMA XII OFFERTI MAG}MULIN F’PAKKETTI SEPARATI
Offerti mag]mulin f’pakketti separati
TAQSIMA XIII PRO~EDURA G}ALL-PRE|ENTATA TA’ APPELLI
Pro`edura g]all-pre\entata ta’ appelli
TAQSIMA XIV BORD TA’ REVI|JONI DWAR IL-KUNTRATTI PUBBLI~I
Bord ta’ Revi\joni
TAQSIMA XV MIXXELLANJI
Dispo\izzjoni transitorja
Jirrevoka tal-Avvi\ Legali 177 tal-2005
SKEDI
Lista S]i]a ta’ Awtoritajiet Kontraenti
Awtoritajiet Kontraenti li jaqg]u ta]t il-kompetenza tad-Dipartiment
tal-Kuntratti
Lista ta’ Awtoritajiet Kontraenti li g]andhom jamministraw l-akkwist
pubbliku tag]hom infushom skond id-dispo\izzjonijiet ta’ dawn ir-
Regolamenti
Lista ta’ Awtoritajiet tal-Gvern ~entrali
Lista ta’ Awtoritajiet Kontraenti li jistg]u jippubblikaw offerti
ming]ajr ma ji[u e\aminati mid-Dipartiment tal-Kuntratti
Attivitajiet tal-Kuntratti tax-Xog]lijiet Pubbli`i
Servizzi skond it-tifsira tar-Regolament 57(1)
Servizzi skond it-tifsira tar-Regolament 57(2)
Valuri ta’ limiti stabbilit skond ir-Regolament 12
Avvi\i dwar kuntratti pubbli`i
Lista ta’ prodotti fil-qasam tad-difi\a
}ti[iet relatati ma’ Tag]mir biex ji[u ri`evuti Offerti b’mezzi
elettroni`i, Talbiet g]al Parte`ipazzjoni u Pjanti u Pro[etti fil-
Kompetizzjonijiet
A.L. 296 tal-2010
ATT DWAR L-AMMINISTRAZZJONI FINANZJARJA
U L-VERIFIKA
(KAP. 174)
Regolamenti tal-2010 dwar il-Kuntatti Pubbli`i
BIS-SA}}A tas-setg]at mog]tija bl-artikolu 4 tal-Att dwar l-
Amministrazzjoni Finanzjarja u l-Verifika, il-Ministru tal-Finanzi, l-
Ekonomija u Investiment g]amel dawn ir-regolamenti li [ejjin:-
TAQSIMA I
Dispo\izzjonijiet {enerali
(1) The title of these regulations is the Public Citation and
commencement.
Procurement Regulations, 2010.
(2) These regulations shall come into force on the 1st June,
2010.
Complete List of Contracting Authorities
OFFICE OF THE PRIME MINISTER
Permanent Secretary’s Office / Department of Corporate
Services
Internal Audit and Investigations Directorate
Planning and Priorities Co-ordination Directorate
Local Government Department
Government Printing Press
Electoral Commission
Public Service Commission
Broadcasting Authority
Malta Council for Economic and Social Development
Malta Tourism Authority
Information
Local Councils
Armed Forces of Malta
National Orchestra Ltd.
Malta Environment and Planning Authority
Heritage Malta
National Council for Culture and the Arts
St James Cavalier Creativity Centre
Manoel Theatre
Mediterranean Conference Centre
Superintendence of Cultural Heritage
Industrial Projects and Services Ltd
Malta Standards Authority
Industrial and Employment Relations
MINISTRY OF FOREIGN AFFAIRS
Permanent Secretary’s Office / Department of Corporate
Services
International Institute on Ageing
Mediterranean Academy for Diplomatic Studies
MINISTRY FOR GOZO
Permanent Secretary’s Office / Department of Corporate
Services
Customer Services
Projects and Development
MINISTRY FOR
Permanent Secretary’s Office / Department of Corporate
INFRASTRUCTURE, TRANSPORT
Services
AND COMMUNICATIONS
Malta Communications Authority
Transport Malta
Malta Information Technology Agency (MITA)
Public Registry
Land Registry
Civil Registration
Malta Government Technology Investments Limited
Grand Harbour Regeneration Corporation p.l.c.
MINISTRY FOR RESOURCES AND
Permanent Secretary’s Office
RURAL AFFAIRS
Agriculture Services and Rural Development
Food and Veterinary Services
Fisheries 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
EuroMedITI Ltd
Waste Serve Malta Ltd.
MINISTRY OF EDUCATION,
Permanent Secretary’s Office / Department of Corporate
EMPLOYMENT AND THE FAMILY
Services
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 g]all-Isports
National Pool tal-Qroqq
Fondazzjoni Patrimonju Malti
National Commission for Higher Education
European Union Programmes Agency
Maltese National Commission for UNESCO
Public Broadcasting Services Ltd.
Employment and Training Corporation
Cooperatives Board
MINISTRY OF FINANCE, THE
Permanent Secretary’s Office / Department of Corporate
ECONOMY AND INVESTMENT
Services
Treasury 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)
Inland Revenue Department
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
Water Services Corporation
Enemalta Corporation
MGI/MIMCOL
MINISTRY FOR JUSTICE AND
Permanent Secretary’s Office / Director Corporate
HOME AFFAIRS
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
MINISTRY FOR HEALTH, THE
Permanent Secretary’s Office
ELDERLY AND COMMUNITY
Social Security
CARE
Benefit Fraud and Investigations
Social Welfare Standards
Housing Authority
Foundation for Social Welfare Services
Sedqa
Appo[[
Sapport
A``ess
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
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
For the purposes of these regulations -
Interpretation.
"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 46(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 9(1)(b) with the purpose of making definite
recommendations for the award of public contracts whose value does
not exceed one hundred and twenty thousand euro (€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 9(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 Union
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 49;
''pre-contractual 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 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 34;
"service provider" means a natural or legal person or public
entity or group of such persons and, or bodies which offers services
on the market;
''Special Contracts Committee'' means the committee defined in
regulation 10;
"supplier" means a natural or legal person or public entity or
group of such persons and, or bodies which offers products on the
market;
''technical specifications'' has the meaning assigned to it
pursuant to regulation 46;
''tenderer'' means an economic operator who has submitted a
tender;
''tenderers concerned'' means 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 12;
"VAT" means value added tax under the Value Added Tax Act;
''work'' means the outcome of building or civil engineering
works taken as a whole which is sufficient of itself to fulfil an
economic and technical function;
''working days'' means days when work is effected in Malta;
"written" or "in writing" means any expression consisting of
words or figures which can be read, reproduced and subsequently
communicated. It may include information which is transmitted and
stored by electronic means.
Contracting Authorities falling within the competence of
the Department of Contracts
OFFICE OF THE PRIME MINISTER
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 Commission
Public Service Commission
Malta Council for Economic and Social Development
Malta Tourism Authority
Local Government Department
Broadcasting Authority
Malta Environment and Planning Authority
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
Industrial Projects and Services Ltd
Malta Standards Authority
Industrial and Employment Relations
MINISTRY OF FOREIGN AFFAIRS
Permanent Secretary’s Office / Department of Corporate
Services
International Institute on Ageing
Mediterranean Academy for Diplomatic Studies
MINISTRY FOR GOZO
Permanent Secretary’s Office / Department of Corporate
Services
Customer Services
Projects and Development
MINISTRY FOR
Permanent Secretary’s Office / Department of Corporate
INFRASTRUCTURE, TRANSPORT
Services
AND COMMUNICATIONS
Malta Communications Authority
Transport Malta
Public Registry
Land Registry
Civil Registration
MINISTRY FOR RESOURCES AND
Permanent Secretary’s Office
RURAL AFFAIRS
Agriculture Services and Rural Development
Food and Veterinary Services
Fisheries Control
Paying Agency
Works Division
Services Division
Financial Management Department
Building and Engineering
Construction and Maintenance
Manufacturing and Services
Building Construction Industry Department
Building Industry Consultative Council
Oil Exploration
Malta Council for Science and Technology
Malta Resources Authority
WasteServ Malta Ltd
MINISTRY OF EDUCATION,
Permanent Secretary’s Office / Department of Corporate
EMPLOYMENT AND THE FAMILY
Services
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 g]all-Isports
National Pool tal-Qroqq
Fondazzjoni Patrimonju Malti
National Commission for Higher Education
European Union Programmes Agency
Maltese National Commission for UNESCO
Public Broadcasting Services Ltd.
Cooperatives Board
Employment and Training Corporation
MINISTRY OF FINANCE, THE
Permanent Secretary’s Office / Department of Corporate
ECONOMY AND INVESTMENT
Services
Treasury Department
Inland Revenue Department
Capital Transfer Duty
Customs Department
VAT Division
Lotteries Department
Contracts Department
Economic Policy Division
Malta Financial Services Authority
Malta Stock Exchange
Lotteries and Gaming Authority
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
Water Services Corporation
Enemalta Corporation
MINISTRY FOR JUSTICE AND
Permanent Secretary’s Office / Director Corporate
HOME AFFAIRS
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
MINISTRY FOR HEALTH, THE
Permanent Secretary’s Office
ELDERLY AND COMMUNITY
Social Security
CARE
Benefit Fraud and Investigations
Social Welfare Standards
Housing Authority
Foundation for Social Welfare Services
Sedqa
Appo[[
Sapport
A``ess
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
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
These regulations provide for the regulation of public Scope
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 17. 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
OFFICE OF THE PRIME MINISTER
Local Councils
MINISTRY FOR
Malta Government Technology Investments Limited
INFRASTRUCTURE, TRANSPORT
(MGTIL)
AND COMMUNICATIONS
Malta Information Technology Agency (MITA)
Grand Harbour Regeneration Corporation P.L.C
MINISTRY FOR RESOURCES AND
EuroMedITI Ltd.
RURAL AFFAIRS
MINISTRY OF FINANCE, THE
MGI/MIMCOL
ECONOMY AND INVESTMENT
(1) Contracting authorities shall ensure that there is no Non-
discrimination between economic operators, and that all economic discrimination
and
operators are treated equally and transparently in all calls for tenders confidentiality.
whatever their estimated value.
(2) Contracting authorities shall ensure that there is no
discrimination between undertakings claiming injury in the context of
a procedure for the award of a contract as a result of the distinction
made by this regulation between national rules implementing
Community law and other national rules.
(3) The provisions of regulation 35(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
Contracts Department
ECONOMY AND INVESTMENT
(1) There shall be a Director of Contracts who shall 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
(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 one hundred and twenty
thousand euro (€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 sub-regulation (1), 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) 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
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 Remedies -
for the provision of pre-contractual remedies to candidates and competence
the Department
tenderers and any person having or having had an interest in of Contracts.
obtaining a particular contract in relation to all public contracts
having a value of less than one hundred and twenty thousand euro
(€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 Director.
(2) In terms of this regulation the Director shall
(a)
take, at the earliest opportunity, interim measures
with the aim of correcting an alleged infringement or preventing
further damages to the interests concerned, including measures
to suspend or to ensure the suspension of the procedure for
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 acquiring a copy of the tender documents or, if the
tender is to be re-issued, to ensure that such a tenderer and any
such person having or having had an interest in obtaining a
particular public contract obtains the new tender document free
of charge.
(3) Any interest 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 twenty calendar days from the
decision on which that decision has been made public.
Services within the meaning of regulation 57(1)
CPA
Subject
Reference No
1. Maintenance and Repair Services
17.40.90
Repair services of tarpaulins and camping equipment
17.52.90
Repair services of nets and ropework
28.21.90
Repair and maintenance services of tanks, reservoirs and
containers of metal
28.22.90
Repair and maintenance services of central heating boilers
28.30.91
Installation services of steam generators, except central heating
hot water boilers, including related pipe system
28.30.92
Repair and maintenance services of steam generators, except
central heating hot water boilers
29.11.91
Installation services of engines and turbines, except aircraft,
vehicle and cycle engines
Subject
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 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 serviccs 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
Subject
Installation services of office machinery
Installation services of computers and other information
processing cquipment
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
Subject
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)
Subject
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
Technical testing and analysis services
13. Advertising Services
Subject
Advertising services
14. Building-cleaning services and property management
services
Real estate agency services on a fee or contract basis
Industrial cleaning services
15. Publishing and printing services on a fee or contract
basis
Newspaper printing services
Printing services, other than printing of newspaper
Bookbinding and finishing services
Composition and plate-making services
Other services related to printing
Reproduction services of recorded media
16. Sewage and refuse disposal services; sanitation and
similar services
Sewage and Refuse disposal services, sanitation and similar
services
(1)
Except for rail transport services covered by Category 18.
(2)
Except voice telephony, telex, radiotelephony, paging and satellite services.
(3)
Except contracts for financial services in connection with the issue, sale, purchase or transfer of securities or other
financial instruments, and central bank services.
(4)
Except research and development service contracts other than those where the benefits accrue exclusively to the
contracting authority for its use in the conduct of its own affairs on condition that the service provided is wholly
remunerated by the contracting authority.
(5)
Except arbitration and conciliation services.
(1) 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 57(2)
Subject
CPC Reference
17. Hotel and restaurant services
Hotel and restaurant services
18. Rail transport services
Railway transportation services
711a
711b
711c
Urban and suburban passenger railway transportation
711d
Subject
CPC Reference
Reference No
19. Water transport services
Water transport services
20. Supporting and auxiliary transport services
Supporting and auxiliary transport services; travel agency
services
21. Legal Services
Legal services
22. Personnel placement and supply services
Labour recruitment and provision of personnel services
23. Investigation and security services except armoured
car services
Investigation services
Security consultation services
Alarm monitoring services
Guard services
Other security services
24. Education and vocational education services
Education services
25. Health and social services
Health and social work services
26. Recreational, cultural and sporting services
Motion picture and video tape production and related services
Motion picture or video tape distribution services
Motion picture projection services
Radio and television services
Artistic and literary creation and interpretation services
Arts facilities operation services
Fair and amusement park services
Other entertainment services
News agency services
Library, archives, museums and other cultural services
Sporting services
Other recreational services
27. Other services
There shall be
General
Contracts
Committee and
(a) (i) a General Contracts Committee whose
Departmental
Contracts
members shall be appointed by the Prime Minister on such
Committee.
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 General 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, as follows
(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 12
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 field 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.
(1) Where the Prime Minister determines that the Special
adjudication of tenders for the award of any particular contract Contracts
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 9
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.
PUBLIC CONTRACT NOTICES
ANNEX I A
INFORMATION WHICH MUST BE INCLUDED
IN PUBLIC CONTRACT NOTICES
NOTICE OF THE PUBLICATION OF A PRIOR INFORMATION NOTICE
ON A BUYER PROFILE
1. Country of the contracting authority
2. Name of the contracting authority
3. Internet address of the "buyer profile" (URL)
4. CPV Nomenclature reference No(s)
PRIOR INFORMATION NOTICE
1. The name, address, fax number and email address of the contracting
authority and, if different, of the service from which additional information may be
obtained and, in the case of services and works contracts, of the services, e.g. the
relevant governmental internet site, from which information can be obtained
concerning the general regulatory framework for taxes, environmental protection,
employment protection and working conditions applicable in the place where the
contract is to be performed.
2. Where appropriate, indicate whether the public contract is restricted to
sheltered workshops, or whether its execution is restricted to the framework of
protected job programmes.
3. In the case of public works contracts: the nature and extent of the works
and the place of execution; if the work is to be subdivided into several lots, the
essential characteristics of those lots by reference to the work; if available, an
estimate of the range of the cost of the proposed works; Nomenclature reference
No(s).
In the case of public supply contracts: the nature and quantity or value of the
products to be supplied, Nomenclature reference No(s).
In the case of public services contracts: the total value of the proposed
purchases in each of the service categories in Annex II A; Nomenclature reference
No(s).
4. Estimated date for initiating the award procedures in respect of the
contract or contracts, in the case of public service contracts by category.
5. Where appropriate, indicate whether a framework agreement is
involved.
6. Where appropriate, other information.
7. Date of dispatch of the notice or of dispatch of the notice of the
publication of the prior information notice on the buyer profile.
8. Indicate whether the contract is covered by the Agreement.
CONTRACT NOTICES
Open and restricted procedures, competitive dialogues, procedures,
negotiated procedures
1. Name, address, telephone and fax number, email address of the
contracting authority.
2. Where appropriate, indicate whether the public contract is restricted to
sheltered workshops, or whether its execution is restricted to the framework of
protected job programmes.
3. (a)
The award procedure chosen;
(b) Where appropriate, the reasons for use of the accelerated
procedure (in restricted and negotiated procedures);
(c)
Where appropriate, indicate whether a framework agreement is
involved;
(d) Where appropriate, indicate whether a dynamic purchasing
system is involved;
(e)
Where appropriate, the holding of an electronic auction (in the
event of open, restricted or negotiated procedures, in the situation covered by
regulations 59(1)(a), 66(1)(a) and 72(1)(a)
4. Form of the contract.
5. Place of execution/performance of the works, for delivery of products
or of the provision of services.
6. (a)
Public works contracts
-
nature and extent of the works and general nature of the work.
Indication in particular of options concerning supplementary
works, and, if known, the provisional timetable for recourse to these options
as well as the number of possible renewals, if any. If the work or the contract
is subdivided into several lots, the size of the different lots;
Nomenclature reference number(s),
-
information concerning the purpose of the work or the contract
where the latter also involves the drawing up of projects,
-
in the event of a framework agreement, indication also of the
planned duration of the framework agreement, the estimated total value of
the works for the entire duration of the framework agreement and, as far as
possible, the value and the frequency of the contracts to be awarded.
(b)
Public supply contracts
-
nature of the products to be supplied, indicating in particular
whether tenders are requested with a view to purchase, lease rental, hire or
hire purchase or a combination of these, nomenclature reference number.
Quantity of products to be supplied, indicating in particular
options concerning supplementary purchases and, if known, the provisional
timetable for recourse to these options as well as the number of renewals, if
any.
Nomenclature reference number(s),
-
in the case of regular or renewable contracts during the course of
a given period, indicate also, if known, the timetable for subsequent contracts
for purchase of intended supplies,
-
in the event of a framework agreement, indication also of the
planned duration of the framework agreement, the estimated total value of
the supplies for the entire duration of the framework agreement and, as far as
possible, the value and the frequency of the contracts to be awarded.
(c)
Public service contracts
-
category and description of service. Nomenclature reference
number(s).
Quantity of services to be provided. Indicate in particular options
concerning supplementary purchases and, if known, the provisional timetable
for recourse to these options as well as the number of renewals, if any. In the
case of renewable contracts over a given period, an estimate of the time
frame, if known, for subsequent public contracts for purchase of intended
services, in the event of a framework agreement, indication also of the
planned duration of the framework agreement, the estimated total value of
the services for the entire duration of the framework agreement and, as far as
possible, the value and the frequency of the contracts to be awarded,
indication of whether the execution of the service is reserved by
law, regulation or administrative provision to a particular profession.
Reference to the law, regulation or administrative provision.
indication of whether legal persons should indicate the names and
professional qualifications of the staff to be responsible for the execution of
the service.
7. If the contracts are subdivided into lots, indication of the possibility of
tendering for one, for several or for all the lots.
8. Any time limit for completion of works/supplies/services or duration of
the works/supply/services contract; where possible any time limit by which works
will begin or any time limit by which delivery of supplies or services will begin.
9. Admission or prohibition of variants.
10. Where applicable particular conditions to which the performance of the
contract is subject.
11. In the case of open procedures
(a)
name, address, telephone and telefax number and electronic
address of the service from which contract documents and additional
documents can be requested;
(b)
where appropriate, time limit for submission of such requests;
(c)
where appropriate, cost of and payment conditions for obtaining
these documents.
Time limit for receipt of tenders or indicative tenders where a
dynamic purchasing system is being used (open procedures);
(b) time limit for receipt of request to participate (restricted and
negotiated procedures);
(c)
address where these have to be transmitted;
(d)
the language or languages in which they must be drawn up.
13. In the case of open procedures
(a)
persons authorised to be present at the opening of tenders;
(b)
date, time and place for such opening.
14. Where appropriate any deposit and guarantees required.
15. Main terms concerning financing and payment and, or references to the
texts in which these are contained.
16. Where applicable, the legal form to be taken by the grouping of
economic operators to whom the contract is to be awarded.
17. Selection criteria regarding the personal situation of economic operators
that may lead to their exclusion, and required information proving that they do not
fall within the cases justifying exclusion. Selection criteria and information
concerning the economic operators’ personal situation, information and any
necessary formalities for assessment of the minimum economic and technical
standards required of the economic operator. Minimum level(s) of standards
possibly required.
18. Where there is a framework agreement: the number and, where
appropriate, proposed maximum number of economic operators who will be
members of it, the duration of the framework agreement provided for, stating, if
appropriate, the reasons for any duration exceeding four years.
19. In the case of a competitive dialogue or a negotiated procedure with the
publication of a contract notice, indicate, if appropriate, recourse to a staged
procedure in order gradually to reduce the number of solutions to be discussed or
tenders to be negotiated.
20. In the case of a restricted procedure, a competitive dialogue or a
negotiated procedure with the publication of a contract notice, when recourse is
had to the option of reducing the number of candidates to be invited to submit
tenders, to engage in dialogue or to negotiate: minimum and, if appropriate,
proposed maximum number of candidates and objective criteria to be used to
choose that number of candidates.
21. Time frame during which the tenderer must maintain its tender (open
procedures).
22. Where appropriate, names and addresses of economic operators already
selected by the contracting authority (negotiated procedures).
23. Criteria referred to in regulation 28(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 25), 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 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 e-mail 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
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 49, 71(3) and (9) and 58(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 49(1), first
sub-paragraph, 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 49, 71(3) and (9) and 58(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
49(1), first sub-paragraph.
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 49(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 49(1)(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".
(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.
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.
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.
Requirements relating to Devices for the Electronic Receipt of Tenders, Requests
for Participation and Plans and Projects in Contests
Devices for the electronic receipt of tenders, requests for participation and
plans and projects in contests must at least guarantee, through technical means and
appropriate procedures, that
(a)
electronic signatures relating to tenders, requests to participate
and the forwarding of plans and projecs comply with national provisions
adopted pursuant to Directive 1999/93/EC;
(b) the exact time and date of the receipt of tenders, requests to
participate and the submission of plans and projects can be determined
precisely;
(c)
it may be reasonably ensured that, before the time limits said
down, no-one can have access to data transmitted under these requiremens;
(d) if that access prohibition is infringed, it may be reasonably
ensured that the infringement is clearly detectable;
(e)
only authorized persons may set or change the dates for opening
data received;
(f)
during the different stages of the contract award procedure or of
the contest access to all data submitted, or to part thereof, must be possible
only through simultaneous action by authorized persons;
(g) simultaneous action by authorized persons must give access to
data transmitted only after the prescribed date;
(h) data received and opened in accordance with these requiremens
must remain accessible only to persons authorised to acquaint themselves
therewith.
B
€11.74
Where a contracting authority intends to issue a call for Requirement of
tenders leading to the award of a public contract, the estimated value approval
issue and
of which falls within the provisions of regulation 15(b) and (c), then publication of
tender.
the contracting authority shall prior to its issue and publication send
to the Director a copy of the tender document including all other
relevant and supporting documentation.
(1) The Director of Contracts shall, by not later than six Annual report.
months after the end of each financial year, make and transmit to the
Minister a report dealing generally with the performance of the
General Contracts Committee, 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 Applicability.
provisions of these regulations, public contracts -
(a)
the estimated value of which does not exceed one
hundred and twenty thousand euro (€120,000), shall be subject
to Part II;
(b) the estimated value of which exceeds one hundred
and twenty thousand euro (€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
16. (1) In calculating the estimated value, the contracting Rules for
authority shall consider the estimated value of remuneration due to calculating
applicable
the successful tenderer net of VAT. This estimation shall take account estimated value.
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 12, 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 eighty thousand euro (€80,000) for services and one
million euro (€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 eighty thousand euro (€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; or
(b) 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
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
installment 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 65(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
one hundred and twenty thousand euro (€120,000)
Where the estimated value of a public contract does not
exceed one hundred and twenty thousand euro (€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), all
public contracts, the estimated value of which does not exceed one
hundred and twenty thousand euro (€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
approves, the procedure for the procurement of equipment, stores,
works or services by the contracting authorities listed in Schedule 2
shall be as follows
(a)
where the estimated value does not exceed two
thousand and five hundred euro (€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 two thousand and
five hundred euro (€2,500) but does not exceed six thousand
euro (€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 twenty-five thousand
euro (€25,000);
(d) where the estimated value exceeds six thousand euro
(€6,000) but not one hundred and twenty thousand euro
(€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 one hundred and twenty thousand euro (€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 sub-regulation (1)(d) direct contracts
valued in excess of six thousand euro (€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 twelve thousand euro (€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 forty-seven thousand
euro (€47,000) shall be four hundred euro (€400), while those
between forty-seven thousand euro (€47,000) and one hundred and
twenty thousand euro (€120,000) shall be 0.5% of the estimated value
of the tender, with a minimum deposit of four hundred euro (€400).
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 Cap. 12.
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 by order to extend
the provisions of this regulation in order 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
one hundred and twenty thousand euro (€120,000)
but does not exceed the thresholds
(1) In addition to this Part, Part I, Part IV and
regulations 40 to 42 also apply to public contracts where the
estimated value exceeds one hundred and twenty thousand euro
(€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
one hundred and twenty thousand euro (€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
one hundred and twenty thousand euro (€120,000)
This Part shall apply to all public contracts whose value is
in excess of one hundred and twenty thousand euro (€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 Framework
agreements.
agreements.
(2) 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
(a)
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 sub-
regulations (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
sub-regulation (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; or
(ii) 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 Dynamic
purchasing
systems.
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 sub-regulation (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
sub-regulation (4), within a time-limit that may not be less than
fifteen days from the date on which the simplified notice was sent.
Contracting authorities may not proceed with tendering until they
have completed evaluation of all the indicative tenders received by
that deadline.
(6) Contracting authorities shall invite all tenderers admitted
to the system to submit a tender for each specific contract to be
awarded under the system. To that end they shall set a time-limit for
the submission of tenders. They shall award the contract to the
tenderer which submitted the best tender on the basis of the award
criteria set out in the contract notice for the establishment of the
dynamic purchasing system. Those criteria may, if appropriate, be
formulated more precisely in the invitation referred to herein.
(7) A dynamic purchasing system may not last for more than
four years, except in duly justified exceptional cases. Contracting
authorities may not resort to this system to prevent, restrict or distort
competition. No charges may be billed to the interested economic
operators or to parties to the system.
(1) Contracts shall be awarded on the basis of the
criteria laid down in this regulation and regulation 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 sub-regulation (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 Special
tenders which appear to be abnormally low in relation to the activity considerations
relating to rules
to be carried out
governing
award criteria.
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 they reject 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 that -
(a) each tender contains all the information necessary
for its evaluation;
(b) the confidentiality of tenders is maintained pending
their evaluation;
(c)
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) tenders are opened after the time limit for their
submission has expired.
(1)
Contracting authorities may use electronic auctions.
(2) (a)
In open, restricted or negotiated procedures in the
case referred to in regulation 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, or
(ii) 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 Sub-contracting
may ask the tenderer to indicate in his tender any share of the contract and
for
which he intends to sub-contract to third parties and any proposed performance.
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 Joint and group
or put themselves forward as candidates. These groups shall not be tendering.
required by contracting authorities to assume a specific legal form;
however, the group selected may be required to do so when it has
been awarded the contract, to the extent that this change is necessary
for the satisfactory performance of the contract.
(2) In the case of public service and public works and public
supply contracts covering in addition services and, or siting and
installation operations, legal persons may be required to indicate, in
the tender or in a request for participation, the names and relevant
professional qualifications of the staff to be responsible for the
performance of the public contract in question.
Where, in accordance with a call for tenders, an offer Separate
consists of separate packages, the procedure set out in Part XII shall packages.
be followed.
(1) There shall be established a Public Contracts Review Board.
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 twelve thousand euro (€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 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 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 Applicability.
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, 67, 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
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 non-discriminatory criteria or rules they
intend to apply, the minimum number of candidates they intend to
invite and, where appropriate, the maximum number.
(b) In the restricted procedure the minimum shall be
five. In the negotiated procedure with publication of a contract notice
and the competitive dialogue procedure the minimum shall be three.
In any event the number of candidates invited shall be sufficient to
ensure genuine competition.
(c)
The contracting authorities shall invite a number of
candidates at least equal to the minimum number set in advance.
Where the number of candidates meeting the selection criteria and the
minimum levels of ability is below the minimum number, the
contracting authority may continue the procedure by inviting the
candidates having the required capabilities. In the context of this
same procedure, the contracting authority may not include other
economic operators who did not request to participate, or candidates
who do not have the required capabilities.
(2) Where the contracting authorities exercise the option of
reducing the number of solutions to be discussed or of tenders to be
negotiated, as provided for in regulation 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 Time limits for
requests to participate, contracting authorities shall take account in receipt
requests to
particular of the complexity of the contract and the time required for participate and
for receipt of
drawing up tenders, without prejudice to the minimum time limits set tenders.
out in regulation 41.
(1) In the case of open procedures, the minimum time Minimum time
limit for the receipt of tenders shall be fifty-two days from the date on limits.
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 sub-regulations (1) and (2)(b) may, as a general rule, be
shortened to thirty-six days, but under no circumstances to less than
twenty-two days.
(b) The time limit shall run from the date on which the
contract notice was sent in open procedures, and from the date on
which the invitation to tender was sent in restricted procedures.
(c)
The shortened time-limit as contained herein shall
be permitted provided that the prior information notice has included
all the information required for the contract notice in Annex I A in
Schedule 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 sub-regulations (1) and (3) in open
procedures, and the time limit for the receipt of the request to
participate referred to in sub-regulation (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 sub-
regulations (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 sub-regulation (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
sub-regulation (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 sub-regulation (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 Time limit for a
works concession contract, the provisions of regulation 71 shall public
concession
contract.
apply.
The calculation of the time limits under this Part shall be Application of
made in accordance with Council Regulation (EEC, Euratom) No Council
Regulation
1182/71 of 3 June 1971 determining the rules applicable to periods, 1182/71.
dates and time limits.
(1) (a) In restricted procedures, competitive dialogue Invitation and
procedures and negotiated procedures with publication of a contract information.
notice within the meaning of regulation 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, or
(ii) 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 other adjoining 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, inform
(a)
any unsuccessful candidate, of the reasons for
rejection of its application;
(b) any unsuccessful tenderer, of the reasons for the
rejection of his tender, including, for the cases referred to in
regulations 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 requests
(a) the name and address of the contracting authority,
the subject-matter and value of the contract, framework
agreement or dynamic purchasing system;
(b) the names of the successful candidates or tenderers
and the reasons for their selection;
(c)
the names of the candidates or tenderers rejected and
the reasons for their rejection;
(d) the reason for rejection of tenders found to be
abnormally low;
(e)
the name of the successful tenderer and the reasons
why his tender was selected and, if known, any share of the
contract or the framework agreement which the successful
tenderer may intend to subcontract to third parties;
(f)
if the contracting authority has used negotiated
procedures, the circumstances which justify the use of such
procedures;
(g) as far as the competitive dialogue is concerned, the
circumstances as laid down in regulation 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 sub-
regulations (4) and (5), by telephone in the cases and circumstances
referred to in sub-regulation (6), or by a combination of those means,
according to the choice of the contracting authority.
(2) The means of communication chosen must be generally
available and thus not restrict economic operators’ access to the
tendering procedure.
(3) Communication and the exchange and storage of
information shall be carried out in such a way as to ensure that the
integrity of data and the confidentiality of tenders and requests to
participate are preserved, and that the contracting authorities examine
the content of tenders and requests to participate only after the time
limit set for submitting them has expired.
(4) The tools to be used for communicating by electronic
means, as well as their technical characteristics, must be non-
discriminatory, generally available and interoperable with the
information and communication technology products in general use.
(5) The following rules are applicable to devices for the
electronic transmission and receipt of tenders and to devices for the
electronic receipt of requests to participate
(a)
information regarding the specifications necessary
for the electronic submission of tenders and requests to
participate, including encryption shall be available to interested
parties. Moreover, the devices for the electronic receipt of
tenders and requests to participate shall conform to the
requirements of Schedule 11;
(b) 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 sub-regulation (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"; or
(b) 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; or
(c)
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; or
(d) 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 sub-regulation (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
sub-regulation (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 sub-regulation (2)(b), 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 sub-regulations (2) and (3) 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) Contracting authorities authorising 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 seven hundred
thousand euro (€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 seven hundred thousand euro
(€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 regulation 16.
The notices referred to in paragraphs (a) and (b) 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) 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 sub-regulation 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 forty-eight 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 sub-regulation (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 Qualitative
selection
participating in a public contract where the economic operator
criteria.
(a)
is bankrupt or is being wound up, or whose affairs
are being administered by the court, who has entered into an
arrangement with creditors or who has suspended business
activities or who is in any analogous situation arising from a
similar procedure under national laws and regulations;
(b) is the subject of proceedings for a declaration of
bankruptcy, for an order for compulsory winding up or
administration by the court or for an arrangement with creditors
or of any other similar proceedings under national laws or
regulations;
(c)
has been convicted of an offence concerning his
professional conduct by a judgement which has the force of res
judicata 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 sub-regulation
(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 sub-regulation (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 sub-regulation for overriding requirements in the
general interest.
For the purposes of this sub-regulation, the contracting
authorities shall, where appropriate, ask candidates or tenderers to
supply the documents referred to in sub-regulations (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 to 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 the economic operator’s economic and Evidence of
financial standing may, as a general rule, be furnished inter alia, by financial
economic
standing.
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 sub-
regulation (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 sub-regulation (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 sub-regulation (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 sub-regulations (2)
and (3) it wishes to receive.
(9) The extent of the information referred to in regulation 51
and in sub-regulations (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 Supplemental
of certificates drawn up by independent bodies attesting to the information.
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 sub-regulation (1) and regulation 50, and the
matters referred to in regulations 51 and 52.
(1) The Director of Contracts shall prepare and forward Report of
to the Commission a statistical report on the contracts awarded by Commission.
contracting authorities listed in Schedule 1 during the preceding year,
not later than the 31st October of each year.
(2) The statistical report shall detail at least
(a)
the estimated overall value of contracts awarded
below the thresholds by each contracting authority or category
of contracting authorities, and
(b) the number and value of contracts awarded above
the thresholds by each contracting authority or category of
contracting authorities,
subdivided as far as possible by procedure, category of works,
product or service using the CPV nomenclatures, and the nationality
of the tenderer to whom the contract has been awarded and, in the
case of negotiated procedures, subdivided in accordance with
regulation 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 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
one hundred and twenty-five thousand euro (€125,000) 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 Application.
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 Two-tier
respect of a service classified under Schedule 7, the contracting application.
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 46 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 as Design
set out herein shall be communicated to those interested in contracts.
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 one hundred and twenty-five thousand euro
(€125,000);
(b) contracting authorities which are not central
government authorities, starting from a threshold equal to or
greater than one hundred and ninety-three thousand euro
(€193,000);
(c)
by all the contracting authorities, starting from a
threshold equal to or greater than one hundred and ninety-three
thousand euro (€193,000) 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 of Entities operating in Water, Energy, Transport,
and Postal Services Sector Regularions which are organised by
contracting authorities exercising one or more of the activities
referred to in regulations 3 to 7 of the Public Procurement of
Entities operating in the Water, Energy, Transport and Postal
Services Sectors 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 sub-paragraph 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 17 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 49 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 sub-regulation (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 49(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 39(1), a contracting authority After prior
may award public service contracts by negotiated procedure, after publication
an EU contract
notice.
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 28,
31(1), 32, 47, 61 and 63 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 50
to 53 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 sub-regulation (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 28.
(3) During the negotiations, contracting authorities shall
ensure the equal treatment of all tenderers. In particular they shall not
provide information in a discriminatory manner which may give some
tenderers an advantage over others.
(4) Contracting authorities may provide for the negotiated
procedure to take place in successive stages in order to reduce the
number of tenders to be negotiated by applying the award criteria in
the contract notice or the specifications. The contract notice or the
specifications shall indicate whether recourse has been had to this
option.
A contracting authority may award public service contracts Without prior
by negotiated procedure without prior publication of an EU contract publication
an EU contract
notice.
notice
(a)
when no tenders or no suitable tenders or no
applications have been submitted in response to an open or
restricted procedure, provided that the initial conditions of the
contract are not substantially altered and on condition that a
report is communicated to the Commission at its request;
(b) when, for technical or artistic reasons, or for reasons
connected with the protection of exclusive rights, the services
may be provided only by a particular economic operator;
(c)
where the contract concerned is awarded subsequent
to a design contest and must be awarded to the successful
candidate or to one of the successful candidates in which case
they shall be invited to participate in the negotiations;
(d) in so far as is strictly necessary, when the time-limits
for open, restricted or negotiated procedures referred to in
regulations 40 and 41 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 16. 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 Information.
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 sub-regulation (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 29.
Contracting authorities which have admitted variants Rejection of
pursuant to regulation 47 may not reject a variant on the sole grounds variants.
that it would lead, if successful, to a supply contract rather than a
public service contract within the meaning of this regulation.
Candidates or tenderers who, under the law of the Member Entitlement to
State in which they are established, are entitled to carry out the carry
service.
relevant service activity, shall not be rejected solely on the grounds
that, under the law of Malta, they would have been required to be
either natural or legal persons.
For the purposes of the award of public contracts by Third countries.
contracting authorities, contracting authorities shall apply in their
relations conditions as favourable as those which they grant to
economic operators of third countries in implementation of the
Agreement on Government Procurement, concluded in the framework
of the Uruguay Round multilateral negotiations. The Department of
Contracts shall to this end consult with the Advisory Committee for
Public Contracts set up by Article 1 of Decision 71/306/EEC.
Section B
Public supply contracts
(1) Public supply contracts where the estimated value of
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 28, 31(1), 32,
47, 61 and 63 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 50 to 53 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 sub-regulation (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 28.
(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 Without prior
contracts by negotiated procedure without prior publication of an EU publication
an EU contract
notice.
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 40 and 41 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 47 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 four million and eight hundred and forty-five
thousand euro (€4,845,000) 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 Public works
contracting authorities where the value of the contracts is equal to or concession.
greater than four million and eight hundred and forty-five thousand
euro (€4,845,000) shall be governed by this regulation. The value
shall be calculated in accordance with the rules applicable to public
works contracts defined in regulation 16.
(2) This regulation shall not apply to public works concessions
which are awarded
(a) in the cases referred to in regulation 17 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 S.L. 174.06
Procurement of Entities operating in the Water, Energy,
Transport and Postal Services Sectors 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 of Entities operating in the Water, Energy, S.L. 174.06
Transport and Postal Services Sectors 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 49(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 41(4) applies,
regulation 41(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
sub-regulation (9) when awarding works contracts to third parties
where the value of such contracts is equal to or greater than four
million and eight hundred and forty-five thousand euro (€4,845,000).
Advertising shall not, however, be required where a works contract
satisfies the conditions listed in regulation 39(2). The values of
contracts shall be calculated in accordance with the rules applicable
to public works contracts laid down in regulation 16.
(b) Groups of undertakings which have been formed to
obtain the concession or economic operators related to them shall not
be considered third parties.
"Related undertaking" shall mean any undertaking over which
the concessionaire can exert a dominant influence, whether directly or
indirectly, or any undertaking which can exert a dominant influence
on the concessionaire or which, as the concessionaire, is subject to the
dominant influence of another undertaking as a result of ownership,
financial participation or the rules which govern it. A dominant
influence on the part of an undertaking is presumed when, directly or
indirectly in relation to another undertaking, such undertaking -
(i)
holds a majority of the undertaking’s subscribed
capital;
(ii) controls a majority of the votes attached to the
shares issued by the undertaking; or
(iii) can appoint more than half of the undertaking’s
administrative, management or supervisory body. The
exhaustive list of such undertakings shall be included in the
application for the concession. That list shall be brought up to
date following any subsequent changes in the relationship
between the undertakings.
(9) (a)
Works concessionaires which are not contracting
authorities and which wish to award works contracts to a third party
shall make known their intention by way of a contract notice.
(b) Notices shall contain the information referred to in
Annex I C of Schedule 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 49.
(d) Regulation 49(12) on the voluntary publication of
notices shall also apply.
(10) In works contracts awarded by a works concessionaire
which is not a contracting authority, the time limit for the receipt of
requests to participate, fixed by the concessionaire, shall be not less
than thirty-seven days from the date on which the contract notice was
dispatched and the time limit for the receipt of tenders not less than
forty days from the date on which the contract notice or the invitation
to tender was dispatched. Regulation 41(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 28,
31(1), 32, 47, 61 and 63 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 50
to 53 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 sub-regulation (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 28.
(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 40 and 41
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
applying the provisions of regulation 16. 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 50 to 53, 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, 40, 41, 44(2), 44(3), 44(4), 45, 49 and 50 to 53.
(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 sub-regulation (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 29 concerning abnormally low tenders.
For the purposes of the award of public contracts by
contracting authorities, contracting authorities shall apply in their
relations conditions as favourable as those which they grant to
economic operators of third countries in implementation of the
Agreement on Government Procurement, concluded in the framework
of the Uruguay Round multilateral negotiations. The Department of
Contracts shall to this end consult with the Advisory Committee for
Public Contracts set up by Article 1 of Decision 71/306/EEC.
PART VII
Public procurement of entities operating in the water, energy,
transport and postal services sector
The public procurement of entities operating in the water, Scope.
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 of Entities S.L. 174.06
operating in the Water, Energy, Transport and Postal Services Sectors
Regulations, be governed by the said Public Procurement of Entities
operating in the Water, Energy, Transport and Postal Services Sectors
Regulations.
PART VIII
Variation Orders
(1) Without prejudice to the provisions of Parts IV, V, Contracts
VI Section A, VI Section B, VI Section C and VII, in all cases where awarded
authorities listed
variation orders individually or in their totality exceed by more than in Schedule 2.
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 sub-regulations (2) and (3).
Approval for variations, having a financial effect as Contracts
indicated in regulation 78(1) on contracts awarded by contracting awarded
authorities listed
authorities listed in Schedule 3, shall require the prior approval of the in Schedule 3.
Minister responsible for that authority who may delegate his authority
in writing to the Parliamentary Secretary, the Permanent Secretary or
the Head of the authority concerned. 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
9 and 10, 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 85(9) shall apply mutatis
mutandis to the Contract Committees.
PART X
Functions of the Contracts Committees
The Contracts Committees shall
Functions of the
Contracts
Committees.
(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
committees, to be known as Procurement Committees, in respect of
tenders whose estimated value exceeds one hundred and twenty
thousand euro (€120,000).
(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 9, 11(2), 11(3), 11(4) and 14,
shall apply mutatis mutandis to the setting up and the functions of
each Procurement Committee, its chairman and its members.
PART XII
Separate packages in tender offer
(1) Contracting authorities listed in Schedule 1 shall
ensure that for all tenders awarded by the open or restricted
procedures with an estimated value of over two million euro
(€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 sub-regulation (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 calendar 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 ten
thousand euro (€10,000) or more than fifty-eight thousand euro
(€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 re-examination
of the reasons brought forward by the adjudication board of any
department or contracting authority for the discarding of any
particular tender.
(7) In fulfilling this obligation the Chairman of the 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 85(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 sub-regulation (4) may request a substitute of the
members of the Review Board when appealing in terms of sub-
regulation (10).
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 44(3), 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 one thousand and two hundred euro (€1,200) or more
than fifty-eight thousand euro (€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
sub-regulation (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
and interested parties. 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, 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
34(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 one hundred and twenty thousand euro (€120,000);
(b) complaints raised in terms of regulation 21 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 34(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 Directive 2004/18/EC;
(ii) in the case of an infringement of sub-regulation (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 one per cent of the
tender value but not exceeding one thousand euro (€1,000).
(4) The decision of the Board shall be rendered in writing; the
Board shall indicate the reasons upon which such decision was taken,
and the decision shall be notified to the interested parties.
(5) 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 Cap. 12.
period of twenty calendar 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
sub-regulation (2)(c) and sub-regulation (3).
(6) Without prejudice to any other provision of these
regulations, the Review Board shall not receive complaints which are
filed later than twenty calendar days from the day following the date
of the conclusion of the contract.
(7) (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 Prime Minister 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 Prime
Minister may establish.
(c)
The Chairman of the Review 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 non-governmental 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 84(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.
(8) (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 Organization and Civil Procedure.
(9) 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.
(10) 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.
(11) 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.
(12) The Review Board shall recommend on whether any
deposit submitted by a tenderer in terms of regulation 84 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.
(13) 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 1 June 2010
but whose award is granted on or after the 1 June 2010, shall continue
to be regulated by the laws which were in force before the 1 June
2010, including any review on any decision thereon.
The Public Contracts Regulations, made by Legal Notice
177 of 2005, are hereby revoked without prejudice to anything done
or omitted to be done thereunder.