68 tal-2015 - Regolamenti tal-2015 li jemendaw ir-Regolamenti dwar il-Kuntratti Pubbliċi

L.N. 68 of 2015

FINANCIAL ADMINISTRATION AND AUDIT ACT

(CAP. 174)

Public Procurement (Amendment) Regulations, 2015

BY VIRTUE of the powers conferred by article 4 of the

Financial Administration and Audit Act, the Minister for Finance has

made the following regulations:-

(1) The title of these regulations is the Public

Procurement (Amendment) Regulations, 2015, and these regulations

shall be read and construed as one with the Public Procurement

Regulations, hereinafter referred to as the "principal regulations".

(2) These regulations shall come into force on such date as the

Minister responsible for finance may, by notice in the Gazette,

establish, and different dates may be so established for different

provisions or different purposes of these regulations.

Regulation 2 of the principal regulations shall be amended

as follows

(a) immediately after the definition "affiliated

undertaking" there shall be added the following new definition

" "black listed person" means any person, whether

legal or natural, with whom a contracting authority and any

body governed by public law shall be prohibited from

carrying out any procurement whether directly or as a sub-

contractor or as a member of a consortium and, or joint

venture;";

(b) immediately after the definition "central government

authorities" there shall be added the following new definition

" "Commercial Sanctions Tribunal" means the

tribunal established in regulation 6H;"; and

(c)

immediately after the definition "Director" there

shall be added the following new definition

" "Director of Employment and Industrial

Relations" shall have the same meaning as specified in the

Employment and Industrial Relations Act;".

Sub-regulation (2) of regulation 6 of the principal

regulations shall be amended as follows

(a)

in paragraph (m) thereof for the words "of this

award." there shall be substituted the words "of this award;";

and

(b) immediately after paragraph (m) thereof, there shall

be added the following new paragraph

"(n) to draw up and maintain a list of persons who

have been blacklisted.".

Immediately after regulation 6 of the principal regulations, Adds new

regulations to

there shall be added the following new regulations

the principal

regulations.

" Black-listing.

(1) The Director of Employment

and Industrial Relations shall request the

Commercial Sanctions Tribunal to black list a

person, whether natural or legal, from

participating in procedures for the award of

public contracts if such person

(a)

has been declared guilty by

any Court or Tribunal of an offence in

terms of the Employment and Industrial

Relations Act or any subsidiary

legislation made under that Act; or

(b) has failed to provide his

employees with a written contract of

service; or

(c)

has failed to provide his

employees with a detailed pay slip

containing all relevant details including

amount paid, normal hours worked,

overtime hours, hours worked on

Sundays and public holidays, hours

availed of a leave or sick leave, a

breakdown of bonuses and allowances

as well as deductions made; or

(d) has failed to deposit wages

or salaries by direct payment in the

employee’s bank account; or

(e)

has failed to provide the

relevant bank statements of wages and

salaries’ deposit and copies of the

detailed payslips, which are to be made

available as and when required by the

Director of Industrial and Employment

Relations; or

(f)

has subcontracted a public

contract to another person employing

the same employees of the principal

contractor to carry out the same or

similar duties for the execution of the

said public contract.

(2) In the case mentioned in sub-

regulation (1)(a), the black listing shall extend

to the legal person, on whose behalf the

person has been found guilty of an offence.

It shall be the function of the

Role and

investigations

Director of Employment and Industrial

of the Director

of Employment

Relations to ensure that the conditions

and Industrial

mentioned in regulation 6A are observed by

Relations.

all persons.

(1) The Director of Employment

Black listing

procedure.

and Industrial Relations shall proceed for the

black listing of a person before the

Commercial Sanctions Tribunal by means of

an application.

(2) If the black listing is based on the

grounds mentioned in regulation 6A(1)(a), the

Director of Employment and Industrial

Relations shall request the black listing of

both the natural person and the legal person

on whose behalf the former was found guilty

of an offence.

(3) The application shall contain a

statement of the facts and the grounds of the

cause for black listing. It shall also contain a

detailed report on the findings of the

investigations carried out by the Director of

Employment and Industrial Relations or a

copy of the decision given by the Court.

(4) The application and all the

documents supporting the application shall be

served on the defendant by registered mail,

who shall have twenty days to file a reply.

The reply shall be accompanied by a deposit

of four hundred euro (€400) payable to the

Secretary of the Commercial Sanctions

Tribunal and shall contain all documentation

in support of the reply.

B B 537 537

(5) The defendant shall cause a copy

of the reply to be served on the Director of

Employment and Industrial Relations.

(6) The written pleadings shall be

deemed to be closed upon the expiration of

the time referred to in sub-regulation (4).

(1) After the expiry of the time

Procedure

before the

allowed for the written pleadings, the

Commercial

Sanctions

Secretary of the Commercial Sanctions

Tribunal.

Tribunal shall immediately notify the Director

of Employment and Industrial Relations and

the defendant of the date on which the first

hearing will be held. The first sitting shall be

appointed within fifteen days from the date

the written pleadings have been closed.

(2) The parties shall appear before the

Commercial Sanctions Tribunal either in

person or by agent on the day and at the time

fixed for the hearing, make their submissions

and produce such evidence as the Commercial

Sanctions Tribunal may allow

Provided that the Commercial

Sanctions Tribunal may postpone the hearing

of the case if it is satisfied that any one of the

parties or any witness was prevented from

appearing before it owing to illness or

absence from Malta.

(3) Upon the request of one of the

parties, the Commercial Sanctions Tribunal

shall have the power to summon witnesses

and to administer the oath to any person

appearing before it. Should a witness duly

notified by a summons signed by the

Chairman of the Commercial Sanctions

Tribunal fail to enter an appearance before the

Commercial Sanctions Tribunal, such person

shall be guilty of an offence and liable, on

conviction, to a fine (multa) of not less than

five hundred euro (€500) and not more than

five thousand euro (€5,000).

(4) The service of all summons, orders

or other acts of the Commercial Sanctions

Tribunal shall be carried out by registered

mail at least five days before the date of the

sitting.

(5) All evidence tendered by witnesses

that are produced before the Commercial

Sanctions Tribunal shall be transcribed and

put in writing in the records of the

proceedings.

(6) When the hearing is concluded, the

Commercial Sanctions Tribunal, if it does not

deliver decision on the same day, shall reserve

decision for the earliest possible date to be

fixed for the purpose, but not later than four

months from the date when the written

pleadings mentioned in regulation 6C are

deemed to be closed

Provided that, for serious and

justified reasons expressed in writing by

means of an order notified to all the parties,

the Commercial Sanctions Tribunal may

postpone the judgment to a later period.

(7) After evaluating all the evidence

and after considering all submissions put

forward by the parties, the Commercial

Sanctions Tribunal shall decide whether to

accede or reject to the request made by the

Director of Employment and Industrial

Relations for the black listing of the

defendant

Provided that the Commercial

Sanctions Tribunal may, after considering

measures taken by the defendant to remedy

the situation and after taking into account the

gravity and particular circumstances of the

offence or misconduct, decide to deliver a

warning to the defendant, instead of black

listing the defendant.

(8) If the Commercial Sanctions

Tribunal decides for the black listing of the

defendant, the black listing period shall be as

follows

(a)

in case of an offence under

regulation 6A(1)(a), the period of black

listing shall be between of two years;

(b) in the case of a misconduct

under regulation 6A(1)(b) to (f), the

period of black listing shall be between

six months and one year

B B

539 539

Provided that where the defendant

is a recidivist in contravention of regulation

6A(1)(a), the black listing period shall be

between two and three years. In the case were

the defendant is a recidivist in contravention

of regulation 6A(1)(b) to (f), the black listing

period shall be between one and three years.

(9) In its decision the Commercial

Sanctions Tribunal shall recommend as to

whether any deposit, or part thereof,

submitted by defendant should be refunded.

(1) Any person who feels

Appeal from

the decision of

aggrieved by a decision taken by the

the

Commercial

Commercial Sanctions Tribunal may appeal

Sanctions

to the Court of Appeal (Superior Jurisdiction)

Tribunal.

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 days

from when the decision was read in public.

(2) A copy of the appeal application

shall be served on the other party, who may

file a written reply within twenty days from

the date of service.

(3) The Court of Appeal shall set down

the cause for hearing at an early date, in no

case later than three 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.

(4) 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.

(5) The Court, for serious and

necessary reasons, may by virtue of a decree

extend for a reasonable time the judicial terms

mentioned under this regulation.

(1) The effects of black listing

Effects of black

listing.

shall commence on the lapse of two months

from the day when the decision of the black

listing has become final.

(2) All existing contracts signed by

contracting authorities and bodies governed

by public law with persons who have been

black listed in terms of these regulations shall

be terminated ipso jure without any

compensation for actual and future losses

from the date on which the decision regarding

the black listing becomes final.

(3) A contracting authority included in

Schedules 1, 2 and 3 or a body governed by

public law shall be prohibited from carrying

out any procurement with a blacklisted

person. Any contract duly signed with persons

included in the blacklist shall be deemed to be

null and void.

(4) Any person who enters into a

contract (whether in his own name or on

behalf of others) in contravention of any of

the provisions of this regulation, and any

person who induces any other person to enter

into or appear on any such contract as

aforesaid or the making thereof, or who aids

or abets any of the aforesaid acts, shall be

guilty of an offence and shall be liable on

conviction to a fine (multa) not exceeding two

thousand euro (€2,000).

(1) The Director of Contracts

Creation of a

black list.

shall keep and maintain an updated list of all

black listed persons.

(2) Whosoever,

for

commercial

reasons, with intent of submitting a tender,

needs to verify whether a person is black

listed, may, upon payment of fifty euro (€50)

and with the explicit consent in writing of the

person concerned, forward a request in

writing to the Department of Contracts to

confirm or otherwise whether the person

indicated is blacklisted. The Department of

Contracts shall, within three working days,

reply to such a request.

(1) There shall be established a

Commercial

Sanctions

Commercial Sanctions Tribunal which shall

Tribunal.

have the function to hear and determine issues

relating to the black listing of persons and

determine the period during which a person

shall be black listed.

(2) The decision of the Commercial

Sanctions Tribunal shall be rendered in

writing, be signed by all members of the

Commercial Sanctions Tribunal and be dated.

(3) The

Commercial

Sanctions

Tribunal shall indicate the reasons upon

which such decision was taken, and the

decision shall be read in public.

(4) The

Commercial

Sanctions

Tribunal shall be composed of a Chairman

and two members who shall be appointed by

the Prime Minister on the advice of the

Minister for Finance, for a period of three

years.

(5) The members of the Commercial

Sanctions Tribunal 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.

(6) The

Commercial

Sanctions

Tribunal shall be assisted by a Secretary.

(7) The Chairman or other member of

the Commercial Sanctions Tribunal 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 on the advice of the

Minister for Finance.

(8) A person shall be disqualified from

being appointed or continuing to be a member

of the Commercial Sanctions Tribunal if he is

a member of the House of Representatives, a

member of a Local Council or if he has a

financial or other interest as is likely to

prejudice the discharge of his functions as a

member of the same Commercial Sanctions

Tribunal.

(9) The members of the Commercial

Sanctions Tribunal shall receive such

remuneration as the Prime Minister may

determine and this shall be paid from the

Consolidated Fund.

(10) The members of the Commercial

Sanctions Tribunal 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

Commercial Sanctions Tribunal.

(11) The sessions of the Commercial

Sanctions Tribunal shall be held in public and

all parties involved shall have the right to

attend and to be accompanied by any person,

professional or otherwise, who they consider

suitable to defend their interests.

(12) The

Commercial

Sanctions

Tribunal shall be empowered to call

witnesses, to administer oaths and to engage

any government official or non-governmental

expert to assist it as it deems fit.

(13) The Chairman, in agreement with

the members of the Commercial Sanctions

Tribunal, shall have the power to determine

the procedure for the hearing and shall ensure

that during the public hearing all interested

parties are given the opportunity to make their

case.

(14) Unless there is an appeal, the

decision of the Commercial Sanctions

Tribunal shall constitute an executive title and

may be enforced in terms of article 273 of the

Code of Organization and Civil Procedure.

(15) Decisions of the Commercial

Sanctions Tribunal shall preferably be taken

on the basis of unanimity. However, majority

decisions shall be final and binding. The

Chairman and the other two members shall

have one vote each.

(16) Decisions of the Commercial

Sanctions Tribunal shall be delivered by the

Chairman to the Director of Contracts on the

same date in which the decision is delivered.

(17) The

Commercial

Sanctions

Tribunal shall, by not later than six months

after the end of the financial year, make and

submit to the Minister for Finance a report

dealing with the performance of the Tribunal

during the financial year being reported upon.

The report shall, in particular, provide details

regarding its decisions.".

5. Sub-regulation (5) of regulation 50 of the principal Amends

regulation 50 of

regulations shall be deleted.

the principal

regulations.

€0.99