Procurement (Energy and Fuels) Appeals Board Regulations, 2013 (energyandfuels)

L.N. 155 of 2013

PUBLIC ADMINISTRATION ACT

(CAP. 497)

Procurement (Energy and Fuels) Appeals Board Regulations, 2013

IN exercise of the powers conferred by article 49 of the Public

Administration Act, the Prime Minister has made the following

regulations:-

PART I

General Provisions

The title of these regulations is the Procurement (Energy

and Fuels) Appeals Board Regulations, 2013.

For the purposes of these regulations, unless the context

otherwise requires -

"the Act" means the Public Administration Act;

"Board" means the board established in terms of regulation 4;

"candidate" means a natural or legal person or entity or group of

such persons and, or bodies participating in a procurement procedure;

"Constitution" means the Constitution of Malta;

"contract" means any contract for pecuniary interest concluded

in writing between one or more candidates and one or more procuring

entities having as its main object the supply of energy or fuels for the

production of energy;

"complainant" means any candidate who files a complaint with

the Board in accordance with the provisions of regulation 30;

"government agency" or "agency" means a body listed in the

Fourth Schedule of the Act;

"government department" or "department" means any entity in

the Public Service that is listed in the Second Schedule of the Act;

"government entity" means an organisation, not being a

government department, a government agency or a commercial

partnership, in which Government has a controlling interest, whether

or not such organisation is established by law;

"procurement procedures" means a process initiated by a

procuring entity for the award of a contract;

"procuring entity" means the Government, any government

department, government agency or government entity;

"Public Service" shall have the same meaning assigned to it by

the Constitution, but shall, for the purposes of these regulations, be

understood in accordance with article 1(2) of the Act;

"recommended candidate" means the candidate who had been

indicated in the adjudication decision of the procuring entity as the

one to whom the contract was to be awarded;

"Secretary" means the Secretary of the Board;

"working days" means days other than a Saturday, Sunday or a

public holiday or national holidays in Malta.

These regulations provide for the determination of Scope.

complaints from candidates against any decision of a procuring entity

to disqualify and, or exclude the candidate from a procurement

procedure or against a proposed award of a contract.

There shall be established a review board to be known as Establishment

the Procurement (Energy and Fuels) Appeals Board which shall be of

(Energy and

regulated in terms of these regulations.

Fuels) Appeals

Board.

It shall be the function of the Board to

Functions of the

Board.

(a)

hear and determine complaints in relation to

procurement procedures in respect of which the procuring entity

shall have specifically indicated that candidates, who have been

harmed or risk being harmed by any decision of the procuring

entity may have recourse to the Board; and

(b) to disqualify and, or exclude the candidate from a

procurement procedure or against a proposed award of a

contract.

If a procuring entity wishes to subject a procurement Procurement

procedure to the review of the Board, the document or documents procedures

the review of

governing the procurement procedure shall specifically refer to these the Board.

regulations and may include a copy of Part III, for the guidance of

candidates. These regulations shall apply to procurement procedures

initiated prior to the promulgation of these regulations if the

procuring entity notifies candidates that it submits to the jurisdiction

of the Board in relation to the relevant procurement procedure.

PART II

Composition and Powers of Board

The Board shall be composed of a Chairperson and two

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

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

A person shall not be qualified to be appointed as

Chairperson of the Board unless he has practised as an advocate in

Malta for a period of, or periods amounting in the aggregate to, not

less than seven years.

A person shall not be qualified to be appointed or continue

to hold office as a member of the Board, if he

(a)

is a Minister, a Parliamentary Secretary, a Member

of the House of Representatives, a public officer or an employee

of a government entity or an agency; or

(b) has been convicted of any crime punishable by

imprisonment for any term; or

(c)

is disqualified to be elected as a member of the

House of Representatives for any of the reasons stated in article

54(1) a), (c), (d), (e), (f), (g) or (h) of the Constitution.

A person shall be disqualified from being appointed or

continuing to be a member of the Board if he has a financial interest

or other interest that is likely to prejudice the discharge of his

functions as a member of the Board.

The Chairperson or other members of the Board may be

individually removed by the Prime Minister 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.

The Chairperson or other member of the Board shall be

disqualified from participating in the hearing of a complaint in such

circumstances as would disqualify a magistrate or judge in a civil

suit.

Any member of the Board who may have a direct or

indirect interest in any contract which becomes the subject of a

complaint shall inform the Chairperson in writing of such interest in

which case the member shall be precluded from further participation

in the hearing of the complaint.

The Prime Minister may appoint a substitute or a number Substitutes.

of substitutes, as Chairperson and as members of the Board, in which

case the said substitute members shall serve for predetermined

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.

The Board shall be assisted by a secretary.

Secretary.

The members of the Board shall receive such remuneration Remuneration.

as the Prime Minister may determine.

The members of the Board shall not be held personally Liability.

liable for any act or omission done in good faith in the course of the

exercise of their functions as members of the Board.

The Board shall be empowered to call witnesses, to Powers of the

administer oaths and to seek expert advice from outside the procuring Board.

entity to assist it in its investigations.

The sessions of the Board during which the complaint is Sessions of the

heard shall be held in public. The complainant and the recommended Board.

candidate, if any, shall have the right to attend and to be accompanied

by any person, professional or otherwise, they consider suitable to

defend their interests.

The Chairperson shall have the power to determine the Power of the

procedure for the hearing of all complaints lodged with the Board and Chairperson

determine the

shall ensure that during the public hearing all interested parties are procedure

hearing.

given the opportunity to make their case.

The review is to be effected by the Board before the next Review.

stage of the adjudication process is commenced and, or before the

award of the contract as the case may be.

The procedure to be followed by the Board shall consist in Procedure

a review of the decision of the adjudication board to determine followed

Board.

whether the decision was, in substance, in accordance with the law

and the documentation governing the relevant procurement

procedure. The Board shall not substitute its discretion for that of the

adjudication board.

In fulfilling the obligation referred to in regulation 22, the Right to put

Chairperson of the Board may ask appropriate questions to the appropriate

questions.

representative of any procuring entity as well as to the members of

the respective adjudication boards and to have recourse to all

pertinent documentation.

Upon completing its review of a complaint, the Board may

do any one or more of the following

(a)

annul anything the procuring entity has done in the

procurement procedure, including annulling the procurement

procedure in its entirety;

(b) give directions to the procuring entity with respect

to anything to be done or redone in the procurement procedure;

and

(c)

substitute the decision of the Board for any decision

of the procuring entity in the procurement procedure.

The Board may decide 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, it concludes that the benefits of the measures are to

exceed their negative consequences.

The decision of the Board shall be final insofar as it

concerns the award of the relevant contract and, or the

disqualification from or reintegration of a candidate in the

procurement procedure

Provided that, notwithstanding the candidate’s rights in

terms of Part IV, the procuring entity shall have the authority to

proceed with the procurement procedure, including the award and

execution of the contract with a candidate, as soon as the decision of

the Board is published and notified to all interested parties

Provided further that, candidates shall be prohibited from

requesting any court to issue precautionary warrants against the

procuring entity in order to stop the procuring entity from proceeding

with the procurement procedure, including the award and execution

of the contract with a candidate.

Decisions of the Board shall preferably be taken on the

basis of unanimity

Provided that decisions taken on the basis of majority shall

be final and binding with regard to the award of the contract

Provided further that the Chairperson and the other two

members shall have one vote each.

All decisions taken by the Board shall be rendered in

writing, signed by all the members of the Board and dated. The Board

shall indicate the reasons upon which such decision was taken and the

decision shall be concluded with definite recommendations which

shall be binding on the procuring entity and all the candidates

involved.

In its decision the Board shall recommend whether any Refund of

deposit submitted by a candidate in terms of regulation 31 should be deposits.

refunded, in whole or in part, or otherwise, giving written reasons for

such recommendation and the recommendation of the Board shall be

final and binding.

PART III

Procedure for the submission and hearing of complaints.

Any candidate who feels aggrieved either by a decision of Complaint

the procuring entity to disqualify and, or exclude the candidate from following

decision.

the relevant procurement procedure or against a proposed award of a

contract may, within six (6) working days of the publication of the

decision, file a complaint at the premises of the procuring entity,

which shall deliver the complaint to the Secretary of the Board

forthwith

For the purposes of this regulation, "publication of the

decision" means the publication of the decision on the notice board of

the procuring entity or, in the case of a decision which has been taken

and published prior to the promulgation of these regulations, the fresh

publication of the decision incorporating a notice to candidates that

these regulations have come into force and that the procuring entity

has submitted to the jurisdiction of the Board in relation to the

relevant procurement procedure.

The complaint referred to in regulation 30 shall only be Validity of

complaint.

valid if

(a)

accompanied by a deposit in the amount specified

by the procuring entity in the procurement procedure, orin the

case of procurement procedures initiated prior to the

promulgation of these regulations, in the notice issued by the

procuring entity in terms of regulation 6

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); and

(b) it sets out in detail the grounds for the complaint and

is accompanied by all supporting documentation.

The procuring entity shall be precluded from proceeding

with the adjudication process and, or with the award of the contract,

during the period of six (6) working days allowed for the submission

of complaints, and, if a complaint is eventually submitted, until the

Board has issued a final decision in relation to any complaints.

The procedure to be followed in submitting and

determining complaints shall be the following

(a) Any decision by a procuring entity shall be made

public at the office of the procuring entity.

If the decision of the procuring entity is

(i) the disqualification, rejection or exclusion of

a candidate, the procuring entity shall notify the candidate

concerned setting out a summary of the relevant reasons

relating to the rejection of the candidate;

(ii) the award of a contract, the procuring entity

shall notify all candidates still in the procurement

procedure of the proposed award and the basis for the

award.

(b) Any candidate who feels aggrieved by the decision

of the procuring entity must file a complaint within six (6)

working days in accordance with the provisions of regulation

31;

(c)

The complaint duly filed in accordance with

regulations 30 and 31 together with all supporting

documentation shall be served on the recommended candidate,

if any;

(d) The recommended candidate, in the case of a

proposed contract award, shall have the right to file a reply to

the complaint filed by the complainant within five (5) working

days from being notified with a copy of the complaint. The

reply shall be served upon the complainant;

(e)

The Chairperson shall appoint the public hearing at

the earliest possible date after the expiry of the period allowed

to candidates for the filing of complaints as set out in regulation

30 or, in the case of complaints from a proposed award, after the

expiry of the period allowed to the recommended candidate as

set out in regulation 33(d), as the case may be, and in any case

not later than three working days, and all public hearing

sessions shall be concluded with urgency as from the date of the

first session;

(f)

The decision of the Board shall be pronounced in

public within three working days after the holding of the final

public hearing session and shall be published at the premises of

the procuring entity

Provided that if the Board is unable, for valid

reasons, to deliver its decision within the stipulated period, the

period shall be extended by a further period of three working

days.

(g) The procuring entity shall transmit a copy of the

decision of the Board to the complainant and the recommended

candidate, if any.

In its review, and unless otherwise specified in these Instances where

regulations, the Board shall consider a contract executed by the a declared

procuring entity with a candidate to be ineffective, and thus shall null.

declare the contract as null from the date of the decision by the Board

(a)

notwithstanding that a complaint is lodged before

the Board, the procuring entity concludes the contract before a

final decision is given by the Board;

(b) the contract is concluded by the procuring entity

before the expiry of the period allowed for the filing of

complaints as provided for in regulation 30.

PART IV

Right to Judicial Review

Any candidate who feels aggrieved by a decision taken by Right of appeal.

the Board in terms of these regulations may appeal to the Court of

Appeal (Superior Jurisdiction), as constituted in terms of article 41(1)

of the Code of Organization and Civil Procedure, on a point of law

arising out of a final decision of the Board within a period of twenty

calendar days from the date of the final decision of the Board.

The Court of Appeal shall only consider the appeal if the Validity of

appeal.

Court is satisfied -

(a)

that the determination of the point of law will

substantially affect the rights of the candidate;

(b) that the point of law is one which the Board was

asked to determine or otherwise relied upon in its decision;

(c)

that on the basis of the findings of fact in the

decision of the Board, the decision of the Board on the point of

law is prima facie open to serious doubt;

(d) that based on a review of the complaint, and of any

response and the decision of the Board, the appeal does not

appear dilatory and vexatious; and

(e)

and in all other cases the Court shall dismiss the

appeal.

Recourse to the Court of Appeal in terms of regulation 35

shall not however preclude or delay the procuring entity from

implementing the Board’s final decision.

In any appeal brought before the Court of Appeal in terms

of regulation 35, it shall be lawful for the applicant to include

(besides a declaration that the final decision of the Board contained a

wrong determination of a point of law) a claim for damages (but not

specific performance of any obligation). Damages shall not be

awarded by the Court unless the applicant can demonstrate bad faith

and manifest unreasonableness. Damages shall be limited to direct,

foreseeable damages and shall not include loss of profit, opportunity

or other indirect, eventual or consequential loss. Where the Court of

Appeal finds that damages are due it may either determine the amount

of damages itself or refer the case to the First Hall of the Civil Court

for the amount to be determined.

Article 469A of the Code of Organization and Civil

Procedure shall not apply in respect of any decision of the Board.

€0.90