Concessions Review Board Regulations, 2015

L.N. 214 of 2015

PUBLIC ADMINISTRATION ACT

(CAP. 497)

Concessions Review Board Regulations, 2015

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 Concessions Review Citation.

Board Regulations, 2015.

For the purposes of these regulations, unless the context Interpretation.

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,

including, without limitation, any aggrieved person having or having

had an interest in obtaining a particular contract;

"Constitution" means the Constitution of Malta;

"contract" means any contract for pecuniary interest concluded

in writing between one or more economic operators and one or more

procuring entities having as its main object the entrustment of the

provision and management of concessions to one such, or more,

economic operators, the consideration for which consists either solely

in the right to exploit those services or works that are the subject of

the contract or in that right together with payment;

"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 to the Act;

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

the Public Service that is listed in the Second Schedule to 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 procedure" means a process initiated by a

procuring entity leading to the award of a concession contract and

which process falls outside the scope of the Public Procurement

Regulations and of the Public Procurement of Entities Operating in

the Water, Energy Transport and Postal Services Sectors Regulations;

"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 2(1) and (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

complaints from candidates against any decision of a procuring entity

in relation to the procurement procedure, including any decision to

disqualify and, or exclude the candidate from a procurement

procedure, any decision to award a contract, and any inclusion of

technical, economic or financial specification in the invitation to

tender, contract documents or in any other document relating to such

procedure.

There shall be established a review board to be known as

the Concessions Review Board which shall be regulated in terms of

these regulations.

It shall be the function of the Board to hear and determine

complaints submitted by candidates in terms of regulations 30 and 31.

A procuring entity may grant the rights of review

mentioned in these regulations by including a specific reference

thereto in the invitation to tender or request for proposals and in such

cases shall include a copy of Part III in any such document. 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 which cannot be extended or otherwise renewed.

A person shall not be qualified to be appointed as Appointment of

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

the Board.

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 Appointment of

members of the

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

Board.

(a)

is a Minister, a Parliamentary Secretary, a Member

of the House of Representatives, or of the European Parliament

or a Local Council, 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 Disqualification

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

the Board.

economic or other personal 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 Removal from

individually removed by the Prime Minister from office on the office.

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 Disqualification

disqualified from participating in the hearing of a complaint in such from

participation in

circumstances as would disqualify a magistrate or judge in a civil the

the complaint.

suit.

Any member of the Board who may have a direct or Direct or

indirect interest in any contract which becomes the subject of a indirect

in a contract.

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.

The members of the Board shall receive such remuneration

as the Prime Minister may, by order to be published in the Gazette,

from time to time prescribe. Such remuneration may not be altered to

the disadvantage of the members during their period of office.

The members of the 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 Board.

The Board shall be empowered to call witnesses, to

administer oaths and to seek expert advice from outside the procuring

entity to assist it in its investigations.

The sessions of the Board during which the complaint is

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

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

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

shall ensure that during the public hearing all interested parties are

given the opportunity to make their case.

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

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

a review of the decision of the adjudication board to determine

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, any

member of the Board may ask appropriate questions to the

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; and

(b)

give directions to the procuring entity with respect

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

The Board may decide to grant interim measures if, after Interim

having taken into consideration the probable consequences of the measures.

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 Decision of the

concerns the award of the relevant contract and, or the Board.

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 Unanimity.

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 Form of

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

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

decision shall include its conclusions which shall be binding on the

procuring entity and all the candidates involved.

In its decision the Board shall decide whether any deposit Refund of

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 conclusion and the conclusion 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 any decision Complaint

of a procuring entity in relation to the procurement procedure, following

decision.

including any decision to disqualify and, or exclude a candidate from

a procurement procedure, any decision to award a contract, and any

inclusion of technical, economic or financial specification in the

invitation to tender, contract documents or in any other document

relating to such procedure, may, within ten (10) calendar days

following the communication date or the date on which the decision

was published by the procuring entity, 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, "communication date"

means the day on which the procuring entity communicates a decision

by fax or electronic means to the candidates, or in the case where the

candidates are not yet identified, the day on which the procuring

entity communicates that decision by electronic means on its website.

The complaint referred to in regulation 30 shall be valid

only if

(a)

accompanied by a deposit in the amount specified

by the procuring entity in the procurement procedure, or in 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 ten (10) calendar 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 and by electronic

means;

(b)

if the decision of the procuring entity is

(i) the disqualification, rejection or exclusion of

a candidate, the procuring entity shall notify, by fax or

electronic means, 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, by fax or electronic means, all candidates still

in the procurement procedure of the proposed award and

the basis for the award;

(c)

any candidate who feels aggrieved by the decision

of the procuring entity must file a complaint within ten (10)

calendar days in accordance with the provisions of regulation

30;

(d)

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;

(e)

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 ten (10) calendar

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

reply shall be served upon the complainant;

(f)

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 paragraph (d), as the case may be, and in any case not

later than three (3) working days, and all public hearing sessions

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

session;

(g)

the decision of the Board shall be pronounced in

public within three (3) 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 (3) working

days;

(h)

the procuring entity shall immediately 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

if

(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 of appeal

Any candidate who feels aggrieved by a decision taken by

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

Appeal (Inferior Jurisdiction), as constituted in terms of article 41 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 ten (10)

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

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 claim damages.

Article 469A of the Code of Organization and Civil

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

€0.72