65 tal-2013 - Regolamenti tal-2013 li jemendaw ir-Regolamenti dwar il-Kuntratti Pubbliċi

L.N. 65 of 2013

FINANCIAL ADMINISTRATION AND AUDIT ACT

(CAP. 174)

Public Procurement (Amendment) Regulations, 2013

BY VIRTUE of the powers conferred by article 4 of the

Financial Administration and Audit Act, the Minister of Finance, the

Economy and Investment has made the following regulations:-

The title of these regulations is the Public Procurement Citation.

(Amendment) Regulations, 2013, and these regulations shall be read

and construed as one with the Public Procurement Regulations, S.L. 174.04

hereinafter referred to as the "principal regulations".

Sub-regulation (3) of regulation 7 of the principal Amends

regulation 7 of

regulations shall be substituted by the following

the principal

regulations.

"(3) (a) Any interested person who feels aggrieved by a

decision taken by the Director of Contracts in terms of this

regulation may, on a point of law, appeal to the Court of Appeal

(Superior Jurisdiction) as constituted in accordance with article

41(1) 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.

(b) A copy of the appeal application shall be served on

the Director of Contracts who may file a written reply within

twenty days from the date of service.

(c)

The Court of Appeal shall set down the cause for

hearing at an early date, in no case later than two months from

the date on which the appeal is brought before it and shall cause

notice of such date to be given to the parties who, on their part,

shall assume the responsibility to visit the court registry and be

aware of the latest information regarding the appointment for

the hearing of the case.

(d) After appointing the application for hearing, the

Court shall decide the application on its merits after hearing the

submissions of all parties, within the shortest time possible but

not any later than four months from the day when the appeal had

been filed and the parties have been duly notified. Pending the

decision of the Court, the process of the call for tenders shall be

suspended.".

In paragraph (k) of sub-regulation (1) of regulation 17 of

the principal regulations, for the words "remunerated by the

contracting authority." there shall be substituted the words

"remunerated by the contracting authority;", and immediately

thereafter there shall be added the following new paragraph

"(l) public supply or service or works contracts, between

one contracting authority and another, that are largely financed

by the central government authority.".

Sub-regulation (5) of regulation 21 of the principal

regulations shall be substituted by the following

"(5) (a) Any tenderer or candidate who feels aggrieved

by a decision taken by the Review Board may appeal to the

Court of Appeal (Superior Jurisdiction) as constituted in

accordance with article 41(1) 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.

(b) A copy of the appeal application shall be served on

the contracting authority and on the recommended tenderer, if

any, who may file a written reply within twenty days from the

date of service.

(c)

The Court of Appeal shall set down the cause for

hearing at an early date, in no case later than two months from

the date on which the appeal is brought before it and shall cause

notice of such date to be given to the parties who, on their part,

shall assume the responsibility to visit the court registry and be

aware of the latest information regarding the appointment for

the hearing of the case.

(d) After appointing the application for hearing, and

after listening to the oral submissions made by all parties, the

Court shall decide the application on its merits, within the

shortest time possible but not any later than four months from

the day when the appeal had been filed and the parties have

been duly notified. Pending the decision of the Court, the

process of the call for tenders shall be suspended.".

In sub-regulation (1) of regulation 84 of the principal

regulations, for the words "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" there shall be

substituted the words "The notice of objection shall only be valid if

accompanied by a deposit equivalent to 0.75 per cent of the estimated

value of the whole tender prior to publication or if the tender is

divided into lots according to the estimated value of the tender for

each lot submitted by the tenderer".

Regulation 85 of the principal regulations shall be Amends

regulation 85 of

amended as follows

the principal

regulations.

(a)

sub-regulation (3) thereof shall be amended as

(i) in sub-paragraph (i) of paragraph (a) thereof,

immediately after the words "Directive 2004/18/EC" there

shall be added the words "and Directive 2004/17/EC";

(ii) sub-paragraph (ii) of paragraph (a) thereof

shall be substituted by the following

"(ii) when, notwithstanding a complaint is

lodged before the Review Board, a contracting

authority or the central government authority

concludes the contract before a final decision is

given by the Review Board;";

(iii) immediately after sub-paragraph (ii) of

paragraph (a) thereof, there shall be added the following

new sub-paragraph

"(iii) when the contract is concluded by a

contracting authority or the central government

authority before the expiry of the period for the

filing of a complaint as provided for in regulations

83(4) and 84(1);"

(iv) paragraph (b) thereof shall be substituted by

the following

"(b) In addition to the declaration of

ineffectiveness of the contract, if the Board

establishes an infringement as contemplated in

paragraph (a)(i), (ii) or (iii), the Board shall impose

penalties as described in paragraph (c) after

assessing all relevant factors, including the

seriousness of the infringement and the behaviour

of the contracting authority or the central

government authority, as the case may be.";

(v) immediately after paragraph (b) thereof, there

shall be added the following new paragraph

(c)

Penalties shall consist of

(i) the imposition of fines on the

contracting authority or the central

government authority, as the case may be, in

the amount of fifteen per cent of the tender

value but not exceeding fifty thousand euro

(€50,000); or

(ii) the shortening of the duration of

the contract

Provided that the award of damages prescribed

in sub-regulation (2)(c) shall not be considered as

an appropriate alternative penalty for the purposes

of this sub-regulation

Provided further that the Review Board may

not consider a contract ineffective, even though it

has been awarded illegally on the grounds

mentioned in paragraph (a)(i), (ii) and (iii), if the

Review Board finds, after having examined all

relevant aspects, that the overriding reasons relating

to a general interest require that the effects of the

contract shall be maintained.";

(b) in sub-regulation (4) thereof, for the words "The

decision of the Board shall be rendered in writing", there shall

be substituted the "The decision of the Board shall be rendered

in writing, be signed by all members of the Board and be dated";

(c)

sub-regulation (5) thereof shall be substituted by the

following

"(5) (a) Any tenderer or candidate who feels

aggrieved by a decision taken by the Review Board in

terms of this regulation may appeal to the Court of Appeal

(Superior Jurisdiction) as constituted in accordance with

article 41(1) 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.

(b) A copy of the appeal application shall be

served on the contracting authority, on the Director of

Contracts and on the recommended tenderer, if any, who

may file a written reply within twenty days from the date

of service.

(c) The Court of Appeal shall set down the cause

for hearing at an early date, in no case later than two

months from the date on which the appeal is brought

before it and shall cause notice of such date to be given to

the parties to the suit who, on their part, shall assume the

responsibility to visit the court registry and be aware of the

latest information regarding the appointment for the

hearing of the case.

(d) After appointing the application for hearing,

and after listening to the oral submissions made by all

parties, the Court shall decide the application on its merits,

within the shortest time possible but not any later than four

months from the day when the appeal had been filed and

the parties have been duly notified. Pending the decision of

the Court the process of the call for tenders shall be

suspended.

(e) The Department of Contracts and a

contracting authority may only refer a matter to the Court

of Appeal (Superior Jurisdiction) in relation to a decision

taken by the Board relating to sub-regulation (2)(c) and

sub-regulation (3).";

(d) sub-regulation (6) thereof shall be substituted by the

following

"(6) Without prejudice to any other provision of

these regulations, the Review Board shall not receive

complaints in terms of sub-regulation (3)(a)(i), (ii) and (iii)

which

(a)

are filed later than thirty calendar days

with effect from the day following the date on

which

(i) the contracting authority or central

government authority published a contract

award notice in accordance with regulation

49

Provided that where the contracting

authority or the central government authority,

as the case may be, publishes a contract award

notice as stated above, without having

published a contract notice, it must include a

justification for such contract award notice; or

(ii) the contracting authority or central

government authority informed the tenderers

and candidates concerned of the conclusion of

the contract in terms of regulation 84(1); and

(b)

in any case not provided for in

paragraph (a) before the expiry of a period of at

least six months with effect from the day following

the date of the conclusion of the contract.";

(e) in paragraph (a) of sub-regulation (8) thereof, for the

words "sub-regulation (6)" there shall be substituted the words

"sub-regulation (5)"; and

(f)

sub-regulation (12) thereof shall be substituted by

the following

"(12) In its decision 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.".

€0.54