353 tal-2016

Suppliment tal-Gazzetta tal-Gvern ta’ Malta Nru. 19,669, 28 ta’ Ottubru, 2016

A.L. 353 tal-2016

Regolamenti tal-2016 dwar Kuntratti ta’ Konċessjoni

The title of these regulations is the Concession Contracts

Regulations, 2016.

Part I

General Provisions

Interpretation and scope

(1)

For the purposes of these regulations -

"bodies governed by public law" means bodies that have all of

the following characteristics

(a)

they are established for the specific purpose of

meeting needs in the general interest, not having an industrial or

commercial character;

(b)

they have legal personality; and

(c)

they are financed, for the most part, by the State,

regional or local authorities, or by other bodies governed by

public law; or are subject to management supervision by those

bodies or authorities; or have 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;

"candidate" means an economic operator that has sought an

invitation or has been invited to take part in a concession award

procedure;

"Commercial Sanction Tribunal" means the Commercial

Sanction Tribunal as established under the Public Procurement

Regulations, 2016;

"concessionaire" means an economic operator which has been

awarded a concession;

"concession document" means any document produced or

referred to by the contracting authority or contracting entity to

describe or determine elements of the concession or the procedure,

including the concession notice, the technical and functional

requirements, proposed conditions of concession, formats for the

presentation of documents by candidates and tenderers, information

on generally applicable obligations and any additional documents;

"concessions" means works or services concessions, as defined

in paragraphs (a) and (b) hereunder

(a)

"works concession" means a contract for pecuniary

interest concluded in writing by means of which one or more

contracting authorities or contracting entities entrust the

execution of works to one or more economic operators the

consideration for which consists either solely in the right to

exploit the works that are the subject of the contract or in that

right together with payment;

(b) "services concession" means a contract for

pecuniary interest concluded in writing by means of which one

or more contracting authorities or contracting entities entrust the

provision and the management of services other than the

execution of works referred to in paragraph (a) to one or more

economic operators, the consideration of which consists either

solely in the right to exploit the services that are the subject of

the contract or in that right together with payment.

The award of a works or services concession shall involve the

transfer to the concessionaire of an operating risk in exploiting those

works or services encompassing demand or supply risk or both. The

concessionaire shall be deemed to assume operating risk where, under

normal operating conditions, it is not guaranteed to recoup the

investments made or the costs incurred in operating the works or the

services which are the subject-matter of the concession. The part of

the risk transferred to the concessionaire shall involve real exposure

to the vagaries of the market, such that any potential estimated loss

incurred by the concessionaire shall not be merely nominal or

negligible;

"contracting authorities" means State, regional or local

authorities, bodies governed by public law or associations formed by

one or more such authorities or one or more such bodies governed by

public law other than those authorities, bodies or associations which

pursue one of the activities referred to in Schedule 4 and award a

concession for the pursuit of one of those activities;

"conflicts of interest" shall at least cover any situation where

staff members of the contracting authority or entity who are involved

in the conduct of the concession award procedure or may influence

the outcome of that procedure have, directly or indirectly, a financial,

economic or other personal interest which might be perceived to

compromise their impartiality and independence in the context of the

concession award procedure;

"Director" means the Director of Contracts as established under

the Public Procurement Regulations, 2016;

"economic operator" means any natural or legal person, or

public entity, or a group of such persons or entities, including

temporary associations of undertakings, which offers the execution of

works and, or a work, the supply of products or the provision of

services on the market;

"electronic means" means 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;

"Evaluation Committee" means boards or committees appointed

by the Director with the purpose of evaluating tenders received and

for making recommendations thereon;

"exclusive right’ means a right granted by a competent authority

of a Member State by means of any law, regulation or published

administrative provision which is compatible with the Treaties, the

effect of which is to limit the exercise of an activity to a single

economic operator and which substantially affects the ability of other

economic operators to carry out such an activity;

"execution of works" means the execution, or both the design

and execution, of works related to one of the activities referred to in

Schedule 2 or of a work, or the realisation, by whatever means, of a

work corresponding to the requirements specified by the contracting

authority or contracting entity exercising a decisive influence on the

type or design of the work;

"General Contracts Committee" means the General Contracts

Committee as established under the Public Procurement Regulations,

2016;

"Government’s e-procurement platform" is an electronic

platform which the Director may indicate from time to time by means

of a circular;

"innovation" means the implementation of a new or

significantly improved product, service or process, including but not

limited to production, building or construction processes, a new

marketing method, or a new organisational method in business

practices, workplace organisation or external relations, inter alia,

with the purpose of helping to solve societal challenges or to support

the Europe 2020 strategy;

"local authorities" includes all authorities of the administrative

units falling under NUTS 3 and smaller administrative units, as

referred to in Regulation (EC) No 1059/2003;

"Minister" means the Minister responsible for finance;

"modification" means any change, variation or amendment to

the original terms of the concession contract including but not limited

to the introduction of new conditions and to the removal or

replacement of existing conditions;

"Public Contracts Review Board" means the Public Contracts

Review Board as established under the Public Procurement

Regulations, 2016;

"public undertaking" means any undertaking over which the

contracting authorities may exercise, directly or indirectly, a

dominant influence by virtue of their ownership thereof, their

financial participation therein, or the rules which govern it;

"regional authorities" include all authorities of the

administrative units listed non-exhaustively in NUTS 1 and 2, as

referred to in Regulation (EC) No 1059/2003;

"special right" means a right granted by a competent authority

of a Member State by means of any law, regulation or published

administrative provision which is compatible with the Treaties the

effect of which is to limit the exercise of an activity to two or more

economic operators and which substantially affects the ability of

other economic operators to carry out such an activity;

"tenderer" means an economic operator which has submitted a

tender;

"TFEU" means the Treaty on European Union and the Treaty on

the Functioning of the European Union 2012/C326/01 including any

future amendment to the said Treaty;

"work" means the outcome of building or civil engineering

works taken as a whole which is sufficient in itself to fulfil an

economic or technical function;

"written" or "in writing" means any expression consisting of

words or figures which can be read, reproduced and subsequently

communicated, including information which is transmitted and stored

by electronic means;

(2) For the purposes of these regulations "contracting entities"

means entities which pursue one of the activities referred to in

Schedule 4 and award a concession for the pursuit of one of those

activities, and which are one of the following

(a)

State, regional or local authorities, bodies governed

by public law or associations formed by one or more such

authorities or one or more such bodies governed by public law;

(b)

public undertakings;

(c)

entities other than those referred to in paragraphs (a)

and (b) but which operate on the basis of special or exclusive

rights, granted for the exercise of one of the activities referred to

in Schedule 4;

(d)

all entities listed under Schedule 1

Provided that entities which have been granted

special or exclusive rights by means of a procedure in which

adequate publicity has been ensured and where the granting of

those rights was based on objective criteria shall not constitute

"contracting entities" within the meaning of paragraph (c). Such

procedures shall include

(i) procurement procedures with a prior call for

competition in conformity with the Public Procurement

Regulations, 2016, the Public Procurement of Contracting

Authorities or Entities in the fields of Defence and

Security Regulations, these regulations and the Public

Procurement of Entities Operating in Water, Energy,

Transport and Postal Services Sectors Regulations, 2016;

(ii) procedures pursuant to other legal acts of the

Union listed in Schedule 5, ensuring adequate prior

transparency for granting authorisations on the basis of

objective criteria.

(3) For the purposes of the definition "public undertaking" a

dominant influence on the part of the contracting authorities shall be

presumed in any of the following cases, in which those authorities,

directly or indirectly

(a)

hold the majority of the undertaking’s subscribed

capital;

(b) control the majority of the votes attaching to shares

issued by the undertaking;

(c)

can appoint more than half of the undertaking’s

administrative, management or supervisory body.

The scope of these regulations is to regulate the award of Scope.

works and service concessions to economic operators.

Applicability

Any concession procedure which has been issued prior to Transitory

the publication of these regulations shall continue to be regulated by provision.

the laws which were previously in force, including any review on any

decision thereon.

(1)

These regulations shall not apply to

Non-

applicability to

concessions

(a)

services concessions awarded to a contracting

awarded by

contracting

authority or to a contracting entity as referred to in regulation

authorities and

2(2)(a) or to an association thereof on the basis of an exclusive

contracting

entities.

right;

(b) services concessions awarded to an economic

operator on the basis of an exclusive right which has been

granted in accordance with the TFEU and Union legal acts

laying down common rules on access to the market applicable to

activities referred to in Schedule 4

Provided that where Union sectoral legislation

referred to in this paragraph does not provide for sector specific

transparency obligations, regulation 96 shall apply

Provided further that where the contracting authority

or entity grants an exclusive right, with an estimated value

which meets or exceeds the value established under Schedule 3,

to an economic operator for the exercise of one of the activities

referred to in Schedule 4 the contracting authority or entity shall

inform the Commission thereof within one month after the

award of that exclusive right;

(c)

concessions for air transport services based on the

granting of an operating licence within the meaning of

Regulation (EC) No 1008/2008 of the European Parliament and

of the Council or to concessions for public passenger transport

services within the meaning of Regulation (EC) No 1370/2007;

(d) concessions which the contracting authority or

contracting entity is obliged to award or organise in accordance

with procedures different from those laid down in these

regulations established by any of the following

(i) a legal instrument creating international law

obligations, such as an international agreement concluded

in conformity with the TFEU between a Member State and

one or more third countries or subdivisions thereof and

covering works, supplies or services intended for the joint

implementation or exploitation of a project by their

signatories;

(ii

an international organisation;

(e)

concessions which the contracting authority or

contracting entity awards in accordance with procurement rules

provided by an international organisation or international

financing institution, where the concessions concerned are fully

financed by that organisation or institution. In the case of

concessions co-financed for the most part by an international

organisation or international financing institution, the parties

shall agree on applicable procurement procedures;

(f)

paragraphs (d) and (e) shall not apply to concessions

awarded in terms of the Public Procurement of Contracting

Authorities or Entities in the fields of Defence and Security

Regulations;

(g) concessions in the fields of defence and security as

referred to and in terms of the Public Procurement of

Contracting Authorities or Entities in the fields of Defence and

Security Regulations, which are governed by

(i) specific procedural rules pursuant to an

international agreement or arrangement concluded

between one or more Member States and one or more third

countries;

(ii) specific procedural rules pursuant to a

concluded international agreement or arrangement relating

to the stationing of troops and concerning the undertakings

of a Member State or a third country;

(iii) specific procedural rules of an international

organisation purchasing for its purposes, or to concessions

which must be awarded by a contracting authority or

contracting entity in accordance with those rules;

(h) concessions in the fields of defence and security as

referred to in the Public Procurement of Contracting Authorities S.L. 174.08

or Entities in the fields of Defence and Security Regulations

which fall under one of the following

(i) concessions for which the application of these

regulations would oblige Malta to supply information the

disclosure of which it considers contrary to the essential

interests of its security; or where the procurement and

performance of the concession are declared to be secret or

must be accompanied by special security measures in

accordance with the laws, regulations or administrative

provisions in force in Malta, provided that Malta has

determined that the essential interests concerned cannot be

guaranteed by less intrusive measures, such as those

referred to in paragraph (i) hereunder;

(ii) concessions awarded in the framework of a

cooperative programme referred to in regulation 14 of the

Public Procurement of Contracting Authorities or Entities S.L. 174.08

in the fields of Defence and Security Regulations;

(iii) concessions awarded by a government to

another government relating to works and services directly

linked to military equipment or sensitive equipment, or

works and services specifically for military purposes, or

sensitive works and sensitive services;

(iv) concessions awarded in a third country,

carried out when forces are deployed outside the territory

of the Union where operational needs require those

concessions to be concluded with economic operators

located in the area of operations; and

(v) concessions otherwise exempted under these

regulations;

(i)

concessions not otherwise exempted under

paragraph (h) to the extent that the protection of the essential

security interests of Malta cannot be guaranteed by less

intrusive measures, for instance by imposing requirements

aimed at protecting the confidential nature of information which

the contracting authority or contracting entity makes available

in a concession award procedure as provided for in these

regulations;

(j)

service concessions for the acquisition or rental, by

whatever financial means, of land, existing buildings or other

immovable property or concerning rights thereon;

(k) service

concessions

for

the

acquisition,

development, production or co-production of programme

material intended for audiovisual media services or radio media

services, that are awarded by audiovisual or radio media service

providers, or concessions for broadcasting time or programme

provision, that are awarded to audiovisual or radio media

service providers;

(l)

service concessions for arbitration and conciliation

services;

(m)

service concessions for any of the following legal

services

(i) legal representation of a client by a lawyer

within the meaning of Article 1 of Council Directive 77/

249/EEC in an arbitration or conciliation held in a Member

State, a third country or before an international arbitration

or conciliation instance, or judicial proceedings before the

courts, tribunals or public authorities of a Member State or

a third country or before international courts, tribunals or

institutions;

(ii) legal advice given in preparation of any of the

proceedings referred to in sub-paragraph (i) or where there

is a tangible indication and high probability that the matter

to which the advice relates will become the subject of such

proceedings, provided that the advice is given by a lawyer

within the meaning of Article 1 of Directive 77/249/EEC;

(iii) document certification and authentication

services which must be provided by notaries;

(iv) legal services provided by trustees or

appointed guardians or other legal services the providers of

which are designated by a court or tribunal in Malta or are

designated by law to carry out specific tasks under the

supervision of such tribunals or courts;

(v)

other legal services which in Malta are

connected, even occasionally, with the exercise of official

authority;

(n) service concessions for financial services in

connection with the issue, sale, purchase or transfer of securities

or other financial instruments within the meaning of Directive

2004/39/EC of the European Parliament and of the Council,

central bank services and operations conducted with the

European Financial Stability Facility and the European Stability

Mechanism;

(o) service concessions for loans, whether or not in

connection with the issue, sale, purchase or transfer of securities

or other financial instruments;

(p) civil defence, civil protection, and danger

prevention services that are provided by non-profit

organisations or associations, and which are covered by CPV

codes: 75250000-3, 75251000-0, 75251100-1, 75251110-4,

75251120-7, 75252000-7, 75222000-8, 98113100-9 and

85143000-3 except patient transport ambulance services;

(q) political campaign services, which are covered by

CPV codes 79341400-0, 92111230-3 and 92111240-6, when

awarded by a political party in the context of an election

campaign;

(r)

service concessions for lottery services, which are

covered by CPV code 92351100-7, awarded by Malta to an

economic operator on the basis of an exclusive right. For the

purpose of this paragraph, the notion of exclusive right does not

cover exclusive rights as referred to in the proviso included

under the definition of the term "contracting entities" under

regulation 2(2)

Provided that the grant of such an exclusive right

shall be subject to publication in the Official Journal of the

European Union;

(s)

concessions awarded by contracting entities for the

pursuit of their activities in a third country, in conditions not

involving the physical use of a network or geographical area

within the Union.

(2) For the purposes sub-regulation (1)(k) "audiovisual media

services" and "media service providers" shall, respectively, have the

same meaning as in points (a) and (d) of Article 1(1) of Directive

2010/13/EU of the European Parliament and of the Council.

"Programme" shall have the same meaning as in point (b) of Article

1(1) of that Directive, but shall also include radio programmes and

radio programme materials. Furthermore, for the purposes of this

provision, "programme material" shall have the same meaning as

"programme".

(3) These regulations shall not affect social security systems

of Malta.

(4) Non-economic services of general interest shall fall

outside the scope of these regulations.

(5) These regulations shall also not affect the freedom of

government to define, what they consider to be services of general

economic interest, how those services should be organised and

financed, in compliance with the State aid rules, and what specific

obligations they should be subject to.

These regulations shall not apply to concessions for the

principal purpose of permitting the contracting authorities to provide

or exploit public communications networks, or to provide to the

public one or more electronic communications services

Provided that for the purposes of this regulation the term

"public communications network" and "electronic communications

service" shall have the same meaning as in Directive 2002/21/EC of

the European Parliament and of the Council.

(1)

These regulations shall not apply to concessions

awarded to -

(a)

provide or operate fixed networks intended to

provide a service to the public in connection with the

production, transport or distribution of drinking water;

(b)

supply drinking water to such networks.

(2) These regulations shall also not apply to concessions with

one, or both of the following subject-matters when they are connected

with an activity referred to in sub-regulation (1)

(a)

hydraulic engineering projects, irrigation or land

drainage, provided that the volume of water to be used for the

supply of drinking water represents more than twenty per cent

of the total volume of water made available by such projects or

irrigation or drainage installations; or

(b)

the disposal or treatment of sewage.

These regulations shall not apply to concessions awarded Exclusion of

by contracting entities where, for the Member State in which such activities

are directly

concessions are to be performed, it has been established pursuant to exposed

competition.

regulation 28 of the Public Procurement of Entities Operating in

Water, Energy, Transport and Postal Services Sectors Regulations,

2016, that the activity is directly exposed to competition in

accordance with regulation 27 of the said regulations.

(1) Concessions for social and other specific services Social and other

listed in Schedule 6 having an estimated value which is less than the specific

services.

threshold established under Schedule 3 and which fall within the

scope of these regulations shall be subject only to the obligations

arising from Part V.

(2) Concessions for social and other specific services listed in

Schedule 6, having an estimated value which meets or exceeds the

threshold established under Schedule 3 falling within the scope of

these regulations shall be subject only to the obligations arising from

regulations 95(3), 96 and Part V.

These regulations shall only apply to service concessions Research and

for research and development services which are covered by CPV development

services.

codes 73000000-2 to 73120000-9, 73300000-5, 73420000-2 and

73430000-5 provided that both the following conditions are fulfilled

(a)

the benefits accrue exclusively to the contracting

authority or contracting entity for its use in the conduct of its

own affairs; and

(b) the service provided is wholly remunerated by the

contracting authority or contracting entity.

The Office of the Director of Contracts

Regulations 10 and 11 of the Public Procurement Director of

Regulations, 2016, shall apply mutatis mutandis to these regulations. Contracts

liability.

(1) For the purposes of these regulations it shall be the Functions and

powers of the

function of the Director

Director.

(a)

to evaluate and approve any request made in terms

of regulation 16(1)(b) and (2);

(b) to approve the appointment of members of the

evaluation committee following a recommendation by the

contracting authority or the contracting entity;

(c)

to appoint members of the special contracts

committee after consultation with the contracting authority or

the contracting entity;

(d) to monitor the correct and efficient implementation

of these regulations;

(e)

to give information and guidance on the

interpretation and application of these regulations free of charge

and to assist contracting authorities and entities and economic

operators in correctly applying these regulations;

(f)

to implement Part VI of the Public Procurement

Regulations, 2016, also in respect of these regulations;

(g) to identify and implement appropriate means to

enable him to monitor the proper execution of contracts

awarded under these regulations; and

(h) to make and transmit to the Minister a report, by not

later than six months after the end of each financial year, about

the performance of the Special Contracts Committee, during the

financial year being reported upon.

(2) When granting the approval to the request as provided for

in sub-regulation (1)(a) the Director may impose any conditions he

may deem fit.

(3) When the Director or any person delegated by him

identifies, through the monitoring activities identified under sub-

regulation (1)(d), specific violations, such as fraud, corruption,

conflict of interest and other serious irregularities, or systemic

problems, he shall report this matter to the appropriate authority.

(4) The Director shall publish an annual report detailing

results of the monitoring activities established in sub-regulation

(1)(d).

When the Director becomes aware that the conditions

established under these regulations are not adhered to he may take

any action necessary including directing the contracting authority or

the contracting entity to cancel the procurement procedure.

The Director shall take appropriate measures to combat

fraud, favouritism and corruption and to effectively prevent, identify

and remedy conflicts of interest arising in the conduct of concession

award procedures, so as to avoid any distortion of competition and to

ensure the transparency of the award procedure and the equal

treatment of all candidates and tenderers

Provided that in instances of conflicts of interest, the

measures adopted shall not go beyond what is strictly necessary to

prevent a potential conflict of interest or eliminate a conflict of

interest that has been identified.

The Director has the power to request from any contracting Request for

authority or entity any information and documentation he might deem information.

necessary in the execution of his tasks.

The Contracting Authority and Contracting Entity

(1) It shall be the duty of all contracting authorities or Obligations of a

contracting

contracting entities to

authority or

contracting

entity.

(a)

observe these regulations;

(b) obtain the prior written consent of the Director

before publishing a concession document;

(c)

publish concessions through government’s e-

procurement platform unless otherwise approved in writing by

the Director

Provided that where the Director approves the

publication of the said concession documents through means

other than the e-procurement platform the contracting authority

or the contracting entity shall publicise the publication and the

award of the concession in question in the Gazette;

(d) administer the process leading to the award of a

concession contract;

(e)

open offers in public;

(f)

publish the names of the bidders and if applicable

any prices quoted, either through Government’s e-procurement

platform or on the notice board at the contracting authority’s or

the contracting entity’s premises;

(g) sign, as the case maybe, the contract with the bidder

who has been recommended for award;

(h) monitor the implementation of the procurement

procedure, the ensuing contract and contractual relationship

including any remission or imposition of penalties;

(i)

ensure that in the performance of concession

contracts economic operators and their sub-contractors comply

with applicable obligations in the fields of environmental, social

and labour law established by Union law, national law,

collective agreements or by the international environmental,

social and labour law provisions listed in Schedule 12;

(j)

make any payments

resulting

from

the

implementation of the contract;

(k) forward a copy of the contracts to the Director

within two working days from the date when these are signed;

and

(l)

institute and defend any judicial or arbitral

proceedings that may be necessary in relation to any contract to

be signed or that has been signed by them;

(m) notify the Commission, if so requested by the latter,

of the following information regarding the application of

regulations 18, 19 and 21

(i) the names of the undertakings or joint

ventures concerned;

(ii)

the nature and value of the concessions

involved;

(iii) proof, deemed necessary by the Commission,

that the relationship between the undertaking or joint

venture to which the concessions are awarded and the

contracting entity complies with the requirements of

regulations 17 to 21.

(2) In forwarding the request for the prior approval of the

Director as established under sub-regulation (1)(b), the contracting

authority or the contracting entity shall include the following

(a)

a copy of the proposed concession documents;

(b) where the process is split in numerous stages, a copy

of the concession documents that will be used during the

process; and

(c)

a list of the persons that will be involved in the

process.

(3) Where a contacting authority or contracting entity is not

listed under any schedule it shall have the same obligations of an

authority listed under Schedule 1.

Affiliated undertakings

For the purposes of regulations 18 to 20 "affiliated Affiliated

undertaking" means any undertaking the annual accounts of which undertaking.

are consolidated with those of the contracting entity in accordance

with the requirements of the Directive 2013/34/EU.

(1) In the case of entities which are not subject to Affiliated

Directive 2013/34/EU including any future amendment to the same, undertakings

which are not

"affiliated undertaking" shall mean any undertaking that

subject to

Directive 2013/

34/EU.

(a)

may be, directly or indirectly, subject to a dominant

influence by the contracting entity;

(b) may exercise a dominant influence over the

contracting entity; or

(c)

in common with the contracting entity, is subject to

the dominant influence of another undertaking by virtue of

ownership, financial participation, or the rules which govern it.

(2) For the purposes of sub-regulation (1), "dominant

influence" shall have the same meaning as in regulation 2(3).

Notwithstanding the provisions of regulation 22 and Non-

provided that the conditions in regulation 20 are met, these applicability

concessions

regulations shall not apply to concessions awarded

awarded to

affiliated

undertakings

(a)

by a contracting entity to an affiliated undertaking; and

ventures.

or

(b) by a joint venture, formed exclusively by a number

of contracting entities for the purpose of carrying out activities

referred to in Schedule 4, to an undertaking which is affiliated

with one of those contracting entities.

(1)

The provisions of regulation 19 shall apply to

Limitation on

the non-

applicability to

(a)

service concessions provided that at least eighty per

affiliated

undertakings

cent of the average total turnover of the affiliated undertaking

and joint

over the preceding three years, taking into account all services

ventures.

provided by that undertaking, derives from the provision of

services to the contracting entity or other undertakings with

which it is affiliated;

(b) works concessions provided that at least eighty per

cent of the average total turnover of the affiliated undertaking

over the preceding three years taking into account all works

provided by that undertaking, derives from the provision of

works to the contracting entity or other undertakings with which

it is affiliated.

(2) Where, because of the date on which an affiliated

undertaking was created or commenced activities, the turnover is not

available for the preceding three years, it shall be sufficient for that

undertaking to show that the turnover referred to in sub-regulation

(1)(a) or (b) is credible, in particular by means of business

projections.

(3) Where more than one undertaking affiliated with the

contracting entity with which they form an economic group provides

the same or similar services or works, the percentages referred to in

sub-regulation (1) shall be calculated taking into account the total

turnover deriving respectively from the provision of services or

works by those affiliated undertakings.

Joint ventures

Notwithstanding the provisions of regulation 22, and

provided that the joint venture has been set up in order to carry out the

activity concerned over a period of at least three years and that the

instrument setting up the joint venture stipulates that the contracting

entities, which form it, will be part thereof for at least the same

period, these regulations shall not apply to concessions awarded by

any of the following

(a)

a joint venture, formed exclusively by a number of

contracting entities for the purpose of carrying out activities

referred to in Schedule 4, to one of these contracting entities; or

(b) a contracting entity to such a joint venture of which

it forms part.

Concessions between Entities within the Public Sector

(1) A concession awarded by a contracting authority or

a contracting entity as referred to in regulation 2(2)(a) to a legal

person governed by private or public law shall fall outside the scope

of these regulations where all of the following conditions are

fulfilled

(a)

the contracting authority or contracting entity

exercises over the legal person concerned a control which is

similar to that which it exercises over its own departments;

(b) more than eighty per cent of the activities of the

controlled legal person are carried out in the performance of

tasks entrusted to it by the controlling contracting authority or

contracting entity or by other legal persons controlled by that

contracting authority or contracting entity; and

(c)

there is no direct private capital participation in the

controlled legal person with the exception of non-controlling

and non-blocking forms of private capital participation required

by national legislative provisions, in conformity with the

Treaties, which do not exert a decisive influence on the

controlled legal person.

(2) A contracting authority or contracting entity as referred to

in regulation 2(2)(a) shall be deemed to exercise over a legal person a

control similar to that which it exercises over its own departments

within the meaning of sub-regulation(1)(a), where it exercises a

decisive influence over both strategic objectives and significant

decisions of the controlled legal person. That control may also be

exercised by another legal person, which is itself controlled in the

same way by the contracting authority or contracting entity.

(3) Sub-regulations (1) and (2) also apply where a controlled

legal person which is a contracting authority or contracting entity as

referred to regulation 2(2)(a) awards a concession to its controlling

contracting authority or contracting entity, or to another legal person

controlled by the same contracting authority or contracting entity,

provided that there is no direct private capital participation in the

legal person being awarded the concession with the exception of non-

controlling and non-blocking forms of private capital participation

required by national legislative provisions, in conformity with the

Treaties, which do not exert a decisive influence on the controlled

legal person.

(1) A contracting authority or a contracting entity as Circumstances

referred to in regulation 2(2)(a), which does not exercise control over where

contracting

a legal person governed by private or public law within the meaning authority

contracting

of regulation 22, may nevertheless award a concession to that legal entity can award

person without applying these regulations where all of the following a body

conditions are fulfilled

by public law

over which it

does not

(a)

the contracting authority or contracting entity as

exercise control.

referred to in regulation 2(2)(a) exercises jointly with other

contracting authorities or contracting entities a control over that

legal person which is similar to that which they exercise over

their own departments;

(b) more than eighty per cent of the activities of that

legal person are carried out in the performance of tasks

entrusted to it by the controlling contracting authorities or

contracting entities or by other legal persons controlled by the

same contracting authorities or contracting entities; and

(c)

there is no direct private capital participation in the

controlled legal person with the exception of non-controlling

and non-blocking forms of private capital participation required

by national legislative provisions, in conformity with the

Treaties, which do not exert a decisive influence on the

controlled legal person.

(2) For the purposes of sub-regulation (1)(a), contracting

authorities or contracting entities as referred to in regulation 2(2)(a)

exercise joint control over a legal person where all of the following

conditions are fulfilled

(a)

the decision-making bodies of the controlled legal

person are composed of representatives of all participating

contracting authorities or contracting entities. Individual

representatives may represent several or all of the participating

contracting authorities or contracting entities;

(b) those contracting authorities or contracting entities

are able to jointly exert decisive influence over the strategic

objectives and significant decisions of the controlled legal

person; and

(c)

the controlled legal person does not pursue any

interests which are contrary to those of the controlling

contracting authorities or contracting entities.

A contract concluded exclusively between two or more

contracting authorities or contracting entities as referred to in

regulation 2(2)(a) shall fall outside the scope of these regulations

where all of the following conditions are fulfilled

(a)

the contract establishes or implements a cooperation

between the participating contracting authorities or contracting

entities with the aim of ensuring that public services they have

to perform are provided with a view to achieving objectives

they have in common;

(b) the implementation of that cooperation is governed

solely by considerations relating to the public interest; and

(c)

the

participating

contracting

authorities

or

contracting entities perform in the open market less than twenty

per cent of the activities concerned by the cooperation.

(1) For the determination of the percentage of activities Determination

referred to in regulations 22(1)(b), 23(1)(b) and 24(c), the average of

percentage of

total turnover or an appropriate alternative activity based measure activities.

such as costs incurred by the relevant legal person, contracting

authority or contracting entity as referred to in regulation 2(2)(a) with

respect to services, supplies and works for the three years preceding

the concession award shall be taken into consideration.

(2) Where, because of the date on which the relevant legal

person, contracting authority or contracting entity was created or

commenced activities or because of a reorganisation of its activities,

the turnover, or alternative activity based measure such as costs, are

either not available for the preceding three years or no longer

relevant, it shall be sufficient to show that the measurement of

activity is credible, particularly by means of business projections.

Mixed contracts

Concessions which have as their subject-matter both works Mixed

and services shall be awarded in accordance with the provisions contracts.

applicable to the type of concession that characterises the main

subject-matter of the contract in question.

In the case of mixed concessions consisting partly of social Mixed

and other specific services listed in Schedule 6 and partly of other concessions

consisting partly

services, the main subject-matter shall be determined according to of

other specific

which of the estimated values of the respective services is the higher. services and

partly of other

services.

Where part of a given contract is covered by Article 346 of Mixed contracts

the TFEU or by the Public Procurement of Contracting Authorities or covered

Article 346 of

by the Public Procurement of Contracting Authorities or Entities in the

S.L. 174.08 or

the fields of Defence and Security Regulations, regulation 33 of these these

regulations.

regulations shall apply.

In the case of contracts intended to cover several activities, Contracts

one of them being subject either to Schedule 4 of these regulations or intended

cover several

to the Public Procurement of Entities operating in Water, Energy, activities.

Transport and Postal Services Sectors Regulations, 2016, the

applicable provisions shall be established in accordance with

regulation 34 of these regulations and regulation 6 of the Public

Procurement of Entities operating in Water, Energy, Transport and

Postal Services Sectors Regulations, 2016, respectively.

Where the different parts of a given contract are

objectively separable, the provisions of regulation 31 shall apply.

Where the different parts of a given contract are objectively not

separable, the provisions of regulation 32 shall apply.

(1) In the case of contracts which have as their subject-

matter elements covered by these regulations as well as other

elements, contracting authorities and contracting entities may choose

to award separate contracts for the separate parts. Where contracting

authorities or contracting entities choose to award separate contracts

for separate parts, the decision as to which legal regime applies to any

one of such separate contracts shall be taken on the basis of the

characteristics of the separate part concerned.

(2) Where contracting authorities or contracting entities

choose to award a single contract, these regulations shall, unless

otherwise provided in sub-regulation (3) or in regulation 33, apply to

the ensuing mixed contract, irrespective of the value of the parts that

would otherwise fall under a different legal regime and irrespective of

which legal regime those parts would otherwise have been subject to.

(3) In the case of mixed contracts containing elements of

concessions as well as elements of public contracts covered by the

Public Procurement Regulations, 2016, or contracts covered by

Public Procurement of Entities operating in Water, Energy, Transport

and Postal Services Sectors Regulations, 2016, the mixed contract

shall be awarded in accordance with the Public Procurement

Regulations, 2016, or the Public Procurement of Entities operating in

Water, Energy, Transport and Postal Services Sectors Regulations,

2016, respectively.

(1) Where the different parts of a given contract are

objectively not separable, the applicable legal regime shall be

determined on the basis of the main subject-matter of that contract.

(2) In the event that the contracts identified in sub-regulation

(1) involve both elements of a services concession and of a supply

contract, the main subject-matter shall be determined according to

which of the estimated values of the respective services or supplies is

the higher.

(1) In the case of mixed contracts which have as their Mixed

subject-matter elements of a concession covered by these regulations procurement

contracts

and procurement or other elements covered by Article 346 of the involving

defence or

TFEU or the Public Procurement of Contracting Authorities or security aspects.

Entities in the fields of Defence and Security Regulations, this S.L. 174.08

regulation shall apply.

(2) In the case of contracts intended to cover several activities,

one of them being subject either to Schedule 4 of these regulations or

to the Regulations on the Public Procurement of Entities operating in

Water, Energy, Transport and Postal Services Sectors, 2016, and

another being covered by Article 346 of the TFEU or the Public S.L. 174.08

Procurement of Contracting Authorities or Entities in the fields of

Defence and Security Regulations, the applicable provisions shall be

established in accordance with, regulation 35 of these regulations and

regulation 20 of the Public Procurement of Entities operating in

Water, Energy, Transport and Postal Services Sectors Regulations,

2016, respectively.

(3) Where the different parts of a given contract are

objectively separable, contracting authorities or contracting entities

may choose to award separate contracts for the separate parts or to

award a single contract.

(4) Where contracting authorities or contracting entities

choose to award separate contracts for separate parts, the decision of

the legal regime applicable to any one of such separate contracts shall

be taken on the basis of the characteristics of the separate part

concerned.

(5) Where contracting authorities or contracting entities

choose to award a single contract, the following criteria shall apply to

determine the applicable legal regime

(a)

where part of a given contract is covered by Article

346 of the TFEU, or different parts are covered by Article 346

of the TFEU and the Public Procurement of Contracting S.L. 174.08

Authorities or Entities in the fields of Defence and Security

Regulations respectively, the contract may be awarded without

applying these regulations, provided that the award of a single

contract is justified for objective reasons;

(b) where part of a given contract is covered by Public S.L. 174.08

Procurement of Contracting Authorities or Entities in the fields

of Defence and Security Regulations, the contract may be

awarded in accordance with these regulations or in accordance

with Public Procurement of Contracting Authorities or Entities

in the fields of Defence and Security Regulations, provided that

the award of a single contract is justified for objective reasons

Provided that the decision to award a single contract shall

not, however, be taken for the purpose of excluding contracts from

the application of either these regulations or the Public Procurement

of Contracting Authorities or Entities in the fields of Defence and

Security Regulations.

(6) Where the different parts of a given contract are

objectively not separable, the contract may be awarded without

applying these regulations where it includes elements to which

Article 346 of the TFEU applies. Otherwise the contracting authority

or contracting entity may choose to award a contract in accordance

with these regulations or in accordance with the Public Procurement

of Contracting Authorities or Entities in the fields of Defence and

Security Regulations.

(1) By way of derogation from regulations 20 to 26, in

the case of contracts intended to cover several activities, contracting

entities may choose to award separate contracts for the purposes of

each separate activity or to award a single contract. Where

contracting entities choose to award a separate contract, the decision

of which rules apply to any one of such separate contracts shall be

taken on the basis of the characteristics of the separate activity

concerned.

(2) Notwithstanding the provisions of regulations 26 to 32,

where contracting entities choose to award a single contract, sub-

regulations (4) and (5) shall apply. However, where one of the

activities concerned is covered by Article 346 of the TFEU or the

Public Procurement of Contracting Authorities or Entities in the

fields of Defence and Security Regulations, regulation 35 of these

regulations shall apply.

(3) The choice between awarding a single contract or

awarding a number of separate contracts shall not be made with the

objective of excluding the contract or contracts from the scope of

these regulations or, where applicable, from the scope of the Public

Procurement Regulations, 2016, and, or the Public Procurement of

Entities operating in the Water, Energy, Transport and Postal Services

Sectors Regulations, 2016.

(4) A contract which is intended to cover several activities

shall be subject to the rules applicable to the activity for which it is

principally intended.

(5) In the case of contracts for which it is objectively

impossible to determine for which activity the contract is principally

intended, the applicable rules shall be determined in accordance with

the following

(a)

the concession shall be awarded in accordance with

the provisions of the regulations applicable to concessions

awarded by contracting authorities if one of the activities for

which the contract is intended is subject to the provisions of the

regulations applicable to concessions awarded by contracting

authorities and the other is subject to the provisions of the

regulations applicable to concessions awarded by contracting

entities;

(b) the contract shall be awarded in accordance with

Public Procurement Regulations, 2016, if one of the activities

for which the contract is intended is subject to these regulations

and the other to Public Procurement Regulations, 2016;

(c)

the contract shall be awarded in accordance with

these regulations, if one of the activities for which the contract

is intended is subject to these regulations and the other is not

subject to either this regulation, the Public Procurement

Regulations, 2016, or the Public Procurement of Entities

operating in Water, Energy, Transport and Postal Services

Sectors Regulations, 2016.

(1) In the case of contracts intended to cover several Concessions

activities, contracting entities may choose to award separate contracts covering

activities

for the purposes of each separate activity or to award a single referred

Schedule 2 and

contract. Where contracting entities choose to award separate activities

contracts for separate parts, the decision as to which legal regime involving

defence or

applies to any one of such separate contracts shall be taken on the security aspects.

basis of the characteristics of the separate activity concerned.

(2) Notwithstanding the provisions of regulation 33, where

contracting entities choose to award a single contract, sub-regulations

(4), (5) and (6) shall apply.

(3) The choice between awarding a single contract or

awarding a number of separate contracts shall not, however, be made

with the objective of excluding the contract or contracts from the

scope of application either of this regulation or the Public S.L. 174.08

Procurement of Contracting Authorities or Entities in the fields of

Defence and Security Regulations.

(4) In the case of contracts intended to cover an activity which

is subject to these regulations and another which is -

(a)

covered by Article 346 of the TFEU; or

(b) subject to the Public Procurement of Contracting

Authorities or Entities in the fields of Defence and Security

Regulations,

the contracting entity may

(i) award a contract without applying these

regulations in the cases set out under paragraph (a); or

(ii) award a contract either in accordance with

these regulations or in accordance with the Public

Procurement of Contracting Authorities or Entities in the

fields of Defence and Security Regulations, in the cases set

out under paragraph (b)

Provided that this sub-paragraph is without

prejudice to the thresholds and exclusions provided for by

Public Procurement of Contracting Authorities or Entities

in the fields of Defence and Security Regulations.

(5) Contracts referred to in sub-regulation (4)(b), which also

include procurement or other elements which are covered by Article

346 of the TFEU, may be awarded without applying these

regulations.

(6) However, it shall be a condition for the application of sub-

regulations (4) and (5) that the award of a single contract is justified

on objective reasons and the decision to award a single contract is not

taken for the purpose of excluding contracts from the application of

these regulations.

Special Contracts Committee and Evaluation Committee

The Director can appoint for a particular concession a

Special Contracts Committee on such terms and conditions as may be

specified in their letter of appointment;

(1) The Special Contracts Committee may be composed

of a chairman, together with not less than four and not more than ten

other members who appear to have the relevant qualifications or

experience.

(2) Members of the General Contracts Committee can be

appointed to serve as members of the Special Contracts Committee.

(3) 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 award of

the public contract is withdrawn.

Any member of the Special Contracts Committee may Removal.

during his tenure of office be removed by the Director 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

Provided that, if the chairman of the Special Contracts

Committee is the Director, the latter may be removed by the Minister.

A person shall be disqualified from being appointed to and Disqualification

from remaining a member of a Committee if he

(a)

is a member of the House of Representatives, or of

the European Parliament or of a Local Council;

(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;

(c)

is legally incapacitated or interdicted;

(d) has been adjudged bankrupt or has made a

composition or arrangement with his creditors; or

(e)

has been convicted of a crime affecting public trust

or of theft or of fraud or of knowingly receiving property

obtained by theft or fraud.

A member of either of these committees may resign his Resignation.

office by letter addressed to the Director.

A member of the Special Contracts Committee who has Declaration that

any direct or indirect interest in any contract dealt with by such a conflict

committee shall disclose the nature of his interest at the first meeting interest.

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.

The Director may also appoint persons from among the Secretaries.

staff at the Department of Contracts to act as secretaries of these

committees. The secretaries shall not be members of these

committees and may not vote.

The meetings of the Special Contracts Committees shall be Meetings.

called by the chairman who shall preside over such meetings. The

majority of the members of the Special Contracts Committee shall

constitute a quorum at a meeting thereof.

Apart from what is stated in these regulations, the Special

Contracts Committees established in terms of these regulations shall

regulate their own proceedings.

Decisions of the Special Contracts Committee 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 shall in the event of an equality of votes, have

a casting vote.

The Special Contracts Committees shall

(a)

advise on all matters relating to services and works

concessions 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)

open tenders in a public session;

(c)

evaluate reports and recommendations submitted by

evaluation committees and make definite recommendations to

the contracting authority or the contracting entity for the award

of services concessions ensuring that the best value for money is

obtained. In this regard, due consideration shall be given to

(i) the final cost including financing costs to the

contracting authority or the contracting entity; and

(ii) the impact of each offer on the recurrent

expenditure of a contracting authority or the contracting

entity;

(d) 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 or the contracting

entity concerned.

The Special Contracts Committee shall, when applicable,

publish the list of tenders received, together with the respective

prices, which list shall be given publicity by the Director immediately

after their opening and scheduling.

(1) There shall be an Evaluation Committee composed

at least of five members two of which shall be the chairman and the

secretary. In any case the number of members of the Evaluation

Committee shall be an odd number.

(2) The members of the Evaluation Committee shall be

approved by the Director following a recommendation by the head of

the contracting authority or the contracting entity.

(3) Regulations 38 to 41 shall apply mutatis mutandis to the

members of the Evaluation Committee.

The chairman and the secretary shall not have any voting Voting.

powers.

(1) Where the chairman believes that the Evaluation Specialised

Committee needs specialised support he shall forward a request to the support.

head of the contracting authority or the contracting entity who made

the recommendation in terms of regulation 48(2).

(2) The head of the contracting authority or the contracting

entity shall afford the support in the shortest time possible.

(1) The role of the Evaluation Committee shall be that Role of the

of evaluating and dealing with the submissions made by a candidate Evaluation

Committee.

or tenderer as established in the concession documents and to make

recommendations to the contracting authority or the contracting

entity or the Special Contracts Committee as the case maybe.

(2) A copy of the recommendation shall be forwarded to the

Director within a reasonable time before publication of the

recommendation.

Boards and Tribunals

(1) The Public Contracts Review Board and the Public Contracts

Commercial Sanctions Tribunal as established under the Public Review

and Commercial

Contracts Regulations, 2016, shall be deemed competent authorities Sanction

Tribunal.

to deal with matters and disputes falling under these regulations.

(2) Regulations 80 to 99 of the Public Procurement

Regulations, 2016, shall mutatis mutandis apply to these regulations.

Methods for calculating the estimated value of concessions

The value of a concession shall be the total turnover of the Calculating the

concessionaire generated over the duration of the contract, net of estimated

of concessions.

VAT, as estimated by the contracting authority or the contracting

entity, in consideration for the works and services being the object of

the concession, as well as for the supplies incidental to such works

and services.

(1) The estimate shall be valid at the moment at which Time when

the concession notice is sent or, in cases where such notice is not estimate

valid.

provided for, at the moment at which the contracting authority or the

contracting entity commences the concession award procedure, for

instance by contacting economic operators in relation to the

concessions.

(2) The determination of whether a concession exceeds the

threshold established under Schedule 3 is that if the value of the

concession is twenty per cent higher than its estimated value, then the

valid estimate shall be the value of the concession at the time of the

award.

(1) The estimated value of the concession shall be

calculated using an objective method specified in the concession

documents. When calculating the estimated value of the concession,

contracting authorities and contracting entities shall, where

applicable, take into account in particular

(a)

the value of any form of option and any extension of

the duration of the concession;

(b) revenue from the payment of fees and fines by the

users of the works or services other than those collected on

behalf of the contracting authority or contracting entity;

(c)

payments or any financial advantage in any form

whatsoever made by the contracting authority or contracting

entity or any other public authority to the concessionaire,

including compensation for compliance with a public service

obligation and public investment subsidies;

(d) the value of grants or any other financial

advantages, in any form, from third parties for the performance

of the concession;

(e)

revenue from sales of any assets which are part of

the concession;

(f)

the value of all the supplies and services that are

made available to the concessionaire by the contracting

authorities or contracting entities, provided that they are

necessary for executing the works or providing the services;

(g)

any prizes or payments to candidates or tenderers.

(2) The choice of the method used to calculate the estimated

value of a concession shall not be made with the intention of

excluding it from the scope of these regulations. A concession shall

not be subdivided with the effect of preventing it from falling within

the scope of these regulations, unless justified by objective reasons.

(1) Where a proposed work or service may result in Value of

concessions being awarded in the form of separate lots, account shall concession

when proposed

be taken of the total estimated value of all such lots.

work or service

is split into lots.

(2) Where the concession is divided into lots these regulations

shall apply to the awarding of each lot.

The Minister shall, from time to time, by regulations Thresholds.

determine the thresholds applicable under these regulations. Such

thresholds shall be reflected in Schedule 3.

The Tenderer/Candidate

(1) Economic operators that, under the law of the Economic

Member State in which they are established, are entitled to provide operators

established in

the relevant service, shall not be rejected solely on the ground that, another

State.

under the law of the Member State in which the contract is awarded,

they would be required to be either natural or legal persons.

(2) Legal persons may be required to indicate, in the tender or

in the application, the names and relevant professional qualifications

of the staff to be responsible for the performance of the contract in

question.

(3) Groups of economic operators, including temporary

associations, may participate in concession award procedures. They

shall not be required by contracting authorities or contracting entities

to have a specific legal form in order to submit a tender or a request to

participate.

(4) Notwithstanding the provisions of sub-regulations (1), (2)

and (3), contracting authorities or contracting entities may require

groups of economic operators to assume a specific legal form once

they have been awarded the contract, to the extent that such change is

necessary for the satisfactory performance of the contract.

(1) Where necessary, contracting authorities or Regulations on

contracting entities may clarify in the concession documents how how

economic

groups of economic operators shall meet the requirements as to operators

meet the

economic and financial standing or technical and professional ability requirements.

referred to in regulations 77 and 78 provided that this is justified by

objective reasons and is proportionate.

(2) Contracting authorities may establish standard terms for

how groups of economic operators are to meet the requirements in

sub-regulation (1). Any conditions for the performance of a

concession by such groups of economic operators, which are different

from those imposed on individual participants, shall also be justified

by objective reasons and shall be proportionate.

(1) Contracting authorities and contracting entities shall

treat economic operators equally and without discrimination and shall

act in a transparent and proportionate manner.

(2) The design of the concession award procedure, including

the estimate of the value, shall not be made with the intention of

excluding it from the scope of these regulations or of unduly

favouring or disadvantaging certain economic operators or certain

works, supplies or services.

(3) Contracting authorities and contracting entities shall aim at

ensuring the transparency of the award procedure and of the

performance of the contract, while complying with regulations 64 and

(1) L-awtorità kontraenti jew l-entità kontraenti għandu

jkollha l-libertà li torganizza l-proċedura li twassal għall-għażla ta’

konċessjonarju soġġett għal konformità ma’ dawn ir-regolamenti.

(2) It-tfassil tal-proċedura tal-għoti ta’ konċessjoni għandu

jirrispetta l-prinċipji stabbiliti fir-regolament 60. B’mod partikolari

matul il-proċedura tal-għoti ta’ konċessjoni, l-awtorità kontraenti jew l-

entità kontraenti m’għandhiex tipprovdi informazzjoni b’mod

diskriminatorju li tista’ tagħti lil xi kandidati jew offerenti vantaġġ fuq

oħrajn.

(1) Il-konċessjonijiet għandhom jingħataw fuq il-bażi tal-

kriterji tal-għotja stabbiliti mill-awtorità kontraenti jew mill-entità

kontraenti skont ir-regolament 79 dment li jiġu sodisfatti l-

kundizzjonijiet kollha li ġejjin

(a)

l-offerta tikkonforma mar-rekwiżiti minimi stabbiliti,

fejn applikabbli, mill-awtorità kontraenti jew mill-entità

kontraenti;

(b) l-offerent ikun konformi mal-kundizzjonijiet għal

parteċipazzjoni kif imsemmija fir-regolament 77;

(ċ)

l-offerent ma jkunx eskluż milli jipparteċipa fil-

proċedura tal-għotja f’konformità mat-Taqsima VI tar-

Regolamenti tal-2016 dwar l-Akkwist Pubbliku; u

(d)

l-offerent mhuwiex black listed skont it-Taqsima VI

tar-Regolamenti tal-2016 dwar l-Akkwist Pubbliku.

(2) Ir-rekwiżiti minimi msemmijin fis-subregolament (1)(a)

għandhom jinkludu kundizzjonijiet u karatteristiċi (partikolarment

tekniċi, fiżiċi, funzjonali u legali) li kwalunkwe sejħa għal offerti

għandha tissodisfa jew ikollha.

(1) Sakemm ma jiġix previst mod ieħor f’dawn ir- Kunfidenzjalità.

regolamenti jew fid-dritt nazzjonali li għaliha l-awtorità kontraenti jew

l-entità kontraenti tkun soġġetta, b’mod partikolari leġiżlazzjoni li

tikkonċerna l-aċċess għal informazzjoni, u mingħajr ħsara għall-obbligi

relatati mar-reklamar ta’ kuntratti ta’ konċessjoni mogħtija u mal-

informazzjoni għal kandidati u offerenti stabbiliti fir-regolamenti 80 u

96, l-awtorità kontraenti jew l-entità kontraenti m’għandhiex tiżvela

informazzjoni mgħoddija lilha minn operaturi ekonomiċi li huma

indikaw bħala kunfidenzjali, inklużi, iżda mhux limitati għal, sigrieti

tekniċi jew kummerċjali u l-aspetti kunfidenzjali tal-offerti.

(2) Mingħajr ħsara għal dak imsemmi f'dawn ir-regolamenti, l-

informazzjoni li ġejja m'għandhiex tiġi kkunsidrata bħala kunfidenzjali

(a)

l-isem tal-offerenti u l-ismijiet individwali tal-membri

ta’ grupp ta’ operaturi ekonomiċi li jkunu ppreżentaw offerta

parikolari;

(b)

l-isem tas-subkuntratturi;

(ċ)

id-dokumentazzjoni

ppreżentata

operaturi

ekonomiċi li tiċċertifika li dawn jikkonformaw mal-kriterji tal-

għażla; u

(d)

l-informazzjoni teknika li hija diġà pubblika.

(1) Id-dispożizzzjonijet

tar-regolament

63 Żvelar ta'

m'għandhomx jipprevjenu l-iżvelar pubbliku ta’ partijiet mhux informazzjoni

mhux

kunfidenzjali ta’ kuntratti konklużi, inkluż xi tibdil sussegwenti.

kunfidenzjali.

(2) L-awtorità kontraenti jew l-entità kontraenti tista’ timponi

fuq operaturi ekonomiċi rekwiżiti immirati biex jipproteġu n-natura

konfidenzjali ta’ informazzjoni li hi tagħmel disponibbli matul il-

proċedura tal-għoti ta' konċessjoni.

Part II

The Process

Setting Up of Procedure

61. (1) The contracting authority or contracting entity shall

have the freedom to organise the procedure leading to the choice of

concessionaire subject to compliance with these regulations.

(2) The design of the concession award procedure shall respect

the principles laid down in regulation 60. In particular during the

concession award procedure, the contracting authority or contracting

entity shall not provide information in a discriminatory manner which

may give some candidates or tenderers an advantage over others.

62. (1) Concessions shall be awarded on the basis of the

award criteria set out by the contracting authority or contracting

entity in accordance with regulation 79 provided that all of the

following conditions are fulfilled

(a)

the tender complies with the minimum requirements

set, where applicable, by the contracting authority or

contracting entity;

(b) the tenderer complies with the conditions for

participation as referred to in regulation 77;

(c)

the tenderer is not excluded from participating in the

award procedure in accordance with Part VI of the Public

Procurement Regulations, 2016; and

(d) the tenderer is not black listed in terms of Part VI of

the Public Procurement Regulations, 2016.

(2) The minimum requirements referred to in sub-regulation

(1)(a) shall contain conditions and characteristics (particularly

technical, physical, functional and legal) that any tender should meet

or possess.

63. (1) Unless otherwise provided in these regulations or in Confidentiality.

any legislation concerning access to information, and without

prejudice to the obligations relating to the advertising of awarded

concession contracts and to the information to candidates and

tenderers set out in regulations 80 and 96, the contracting authority or

contracting entity shall not disclose information forwarded to it by

economic operators which they have designated as confidential,

including but not limited to, technical or trade secrets and the

confidential aspects of tenders.

(2) Without prejudice to what is stated in these regulations the

following information shall not be considered as confidential

(a)

the name of the bidders and the individual names of

the members of a group of economic operators who submitted a

particular tender;

(b)

the name of the sub-contractors;

(c)

documentation submitted by economic operators

attesting that they comply with selection criteria; and

(d)

technical information which is already public.

64. (1) The provisions of regulation 63 shall not prevent Disclosure of

public disclosure of non-confidential parts of concluded contracts, non-confidential

information.

including any subsequent changes.

(2) The contracting authority or a contracting entity may

impose on economic operators requirements aimed at protecting the

confidential nature of information which it makes available

throughout the concession award procedure.

65. The contracting authority or contracting entity shall Information to

communicate the description of the envisaged organisation of the the

about the

procedure and an indicative completion deadline to all participants. selected

procedure.

Any modification shall be communicated to all participants and, to

the extent that they concern elements disclosed in the concession

notice or in the Gazette, as the case maybe, they are to be advertised

to all economic operators.

The contracting authority or contracting entity shall

provide for appropriate recording of the stages of the procedure using

the means it judges appropriate, subject to compliance with

regulations 63 and 64(1).

The contracting authority or contracting entity may hold

negotiations with candidates and tenderers. The subject-matter of the

concession, the award criteria and the minimum requirements shall

not be changed during the course of the negotiations.

(1) For tenders with an estimated value which meets or

exceeds the threshold established under Schedule 3, the contracting

authority or contracting entity shall provide

(a)

in the concession notice, a description of the

concession and of the conditions of participation;

(b) in the invitation to submit a tender or in other

concession documents, a description of the award criteria and,

where applicable, the minimum requirements to be met.

(2) The contracting authority or contracting entity may limit

the number of candidates or tenderers to an appropriate level on

condition that this is done in a transparent manner and on the basis of

objective criteria. The number of candidates or tenderers invited shall

be sufficient to ensure genuine competition.

(1) When fixing the time limits for the receipt of

applications or of tenders, contracting authorities or contracting

entities shall take account in particular the complexity of the

concession and the time required for drawing up tenders or

applications without prejudice to the minimum time limits set out in

this regulation.

(2) Where applications or tenders can be made only after a

visit to the site or after on-the-spot inspection of the documents

supporting the concession award documents, the time limits for the

receipt of applications for the concession or for the receipt of tenders,

shall be fixed so that all economic operators concerned may be aware

of all the information needed to produce applications or tenders and,

in any event, shall be longer than the minimum time limits set out in

sub-regulations (3) and (4).

(3) The minimum time limit for the receipt of applications

whether or not including tenders for the concession shall be thirty

days from the date on which the concession notice was sent.

(4) Where the procedure takes place in successive stages the

minimum time limit for the receipt of initial tenders shall be twenty-

two days from the date on which the invitation to tender is sent.

(5) The time limit for receipt of tenders may be reduced by

five days where the contracting authority or contracting entity accepts

that tenders may be submitted by electronic means in conformity with

the provisions of regulation 75.

(1) Technical and functional requirements shall define Technical and

the characteristics required of the works or services that are the functional

requirements.

subject-matter of the concession. They shall be set out in the

concession documents.

(2) Those characteristics may also refer to the specific process

of production or provision of the requested works or services

provided that they are linked to the subject-matter of the contract and

proportionate to its value and its objectives. The characteristics may

for instance include quality levels, environmental and climate

performance levels, design for all requirements (including

accessibility for disabled persons) and conformity assessment,

performance, safety or dimensions, terminology, symbols, testing and

test methods, marking and labelling, or user instructions.

(3) Unless justified by the subject-matter of the contract,

technical and functional requirements shall not refer to a specific

make or source, or a particular process which characterises the

products or services provided by a specific economic operator, or to

trade marks, patents, types or a specific production with the effect of

favouring or eliminating certain undertakings or certain products.

Such a reference shall be permitted, on an exceptional basis, where a

sufficiently precise and intelligible description of the subject-matter

of the contract is not possible. Such reference shall be accompanied

by the words ‘or equivalent’.

(4) A contracting authority or contracting entity shall not

reject a tender on the grounds that the works and services tendered for

do not comply with the technical and functional requirements to

which it has referred, once the tenderer proves in its tender, by any

appropriate means, that the solutions it has proposed satisfied in an

equivalent manner the technical and functional requirements.

Any references to nomenclatures in the context of the Use of CPV

award of concessions shall be made using the ‘Common Procurement Codes.

Vocabulary (CPV)’ as adopted by Regulation (EC) No 2195/2002 of

the European Parliament and of the Council.

(1)

The duration of concessions shall be limited.

(2) The contracting authority or contracting entity shall

estimate the duration on the basis of the works or services requested.

(1) For concessions lasting more than five years, the

maximum duration of the concession shall not exceed the time that a

concessionaire could reasonably be expected to take to recoup the

investments made in operating the works or services together with a

return on invested capital taking into account the investments

required to achieve the specific contractual objectives.

(2) The investments taken into account for the purposes of the

calculation shall include both initial investments and investments

during the life of the concession.

(1) Contracting authorities may reserve the right to

participate in concession award procedures to sheltered workshops

and economic operators whose main aim is the social and

professional integration of disabled or disadvantaged persons or may

provide for such concessions to be performed in the context of

sheltered employment programmes, provided that at least thirty per

cent of the employees of those workshops, economic operators or

programmes are disabled or disadvantaged workers.

(2) In case of tenders with an estimated value which exceeds

the threshold established under Schedule 3, the concession notice or,

in the case of services concessions as defined in regulation 9(2), prior

information notice shall make reference to this regulation.

(1) All concessions issued by the contracting authorities

shall be published through government’s e-procurement platform

unless otherwise approved in writing by the Director and any

communication should be carried out through the same platform;

(2) Upon the authorization of the Director, the contracting

authority or the contracting entity may choose one or more of the

following means of communication for all communication and

information exchange

(a)

post or fax;

(b) oral communication, including telephone, in respect

of communications other than the essential elements of a

concession award procedure, and provided that the content of

the oral communication is documented to a sufficient degree on

a durable medium;

(c)

hand delivery certified by an acknowledgement of

receipt.

(3) The means of communication chosen shall be generally

available and non-discriminatory, and shall not restrict economic

operators’ access to the concession award procedure. The tools and

devices to be used for communicating by electronic means, as well as

their technical characteristics shall be interoperable with the

information and communication technology products in general use.

(4) In all communication, exchange and storage of

information, contracting authorities and contracting entities shall

ensure that the integrity of data and the confidentiality of applications

and tenders are preserved. They shall examine the content of

applications and tenders only after the time limit set for submitting

them has expired.

(1) Contracting authorities and contracting entities shall Electronic

offer by electronic means unrestricted and full direct access free of availability

concession

charge to the concession documents.

documents.

(2) For tenders with an estimated value which is less than the

thresholds established under Schedule 3 the obligation set out under

sub-regulation (1) shall commence from the date on which the

concession document has been published.

(3) For tenders with an estimated value which meets or

exceeds the thresholds established under Schedule 3 the obligation

established under sub-regulation (1) shall commence from the

publication of a concession notice or, where the concession notice

does not include the invitation to submit tenders, from the date on

which an invitation to submit tenders was sent. The text of the

concession notice or of these invitations shall specify the internet

address at which the concession documents are accessible.

(4) Where, in duly justified circumstances, due to exceptional

security, or technical reasons or due to the particularly sensitive

nature of commercial information requiring a very high level of

protection, unrestricted and full direct access free of charge by

electronic means to certain concession documents cannot be offered,

contracting authorities or contracting entities shall indicate in the

notice or the invitation to submit a tender that the concession

documents concerned will be transmitted by other means than

electronic means and the time limit for the receipt of tenders shall be

prolonged.

(5) If requested in good time, the contracting authorities and

contracting entities or competent departments shall supply to all

applicants or tenderers taking part in the concession award procedure

additional information relating to the concession documents not later

than six days before the deadline fixed for the receipt of tenders.

Qualitative Assessment and Selection of Candidates,

Economic Operators and Tenderers.

Contracting authorities and contracting entities shall verify

the conditions for participation relating to the professional and

technical ability and the financial and economic standing of the

candidates or tenderers, on the basis of self-declarations, reference or

references to be submitted as proof in accordance with the

requirements specified in the concession notice that shall be non-

discriminatory and proportionate to the subject-matter of the

concession. The conditions for participation shall be related and

proportionate to the need to ensure the ability of the concessionaire to

perform the concession, taking into account the subject-matter of the

concession and the purpose of ensuring genuine competition.

(1) With a view to meeting the conditions for

participation laid down in regulation 77 an economic operator may,

where appropriate and for a particular concession, rely on the

capacities of other entities, regardless of the legal nature of its links

with them. Where an economic operator wants to rely on the

capacities of other entities, it shall prove to the contracting authority

or the contracting entity that it will have at its disposal, throughout

the period of the concession, the necessary resources, for example, by

producing a commitment by those entities to that effect. With regard

to financial standing, the contracting authority or the contracting

entity may require that the economic operator and those entities are

jointly liable for the execution of the contract.

(2) Under the same conditions, a group of economic operators

as referred to in regulations 58 and 59 may rely on the capacities of

participants in the group or of other entities.

Award of Contract

(1) Concessions shall be awarded on the basis of

objective criteria which comply with the principles set out in

regulation 60 and which ensure that tenders are assessed in conditions

of effective competition so as to identify an overall economic

advantage for the contracting authority or the contracting entity.

(2) The award criteria shall be linked to the subject-matter of

the concession, and shall not confer an unrestricted freedom of choice

on the contracting authority or the contracting entity. They may

include, inter alia, environmental, social or innovation-related

criteria.

(3) Those criteria shall be accompanied by requirements

which allow the information provided by the tenderers to be

effectively verified.

(4) The contracting authority or the contracting entity shall

verify whether tenders properly meet the award criteria.

(5) The contracting authority or the contracting entity shall list

the criteria in descending order of importance.

(6) Notwithstanding the provisions of sub-regulation (1),

where the contracting authority or contracting entity receive a tender

which proposes an innovative solution with an exceptional level of

functional performance which could not have been foreseen by a

diligent contracting authority or contracting entity, the contracting

authority or contracting entity may, exceptionally, modify the ranking

order of the award criteria to take into account that innovative

solution. In that case, the contracting authority or the contracting

entity shall inform all tenderers about the modification of the order of

importance and shall issue a new invitation to submit tenders, in

respect of the minimal time limits referred to in regulation 69(4).

(7) Without prejudice to the provisions of sub-regulation (6),

where the award criteria have been published at the moment of the

publication of the concession notice, the contracting authority or

entity shall publish a new concession notice, in respect of the

minimum time limits referred to in regulation 69(3).

(8) The modification of the ranking order shall not result in

discrimination.

(1) The contracting authority or contracting entity shall Provision of

as soon as possible inform each candidate and tenderer of decisions information

candidates.

taken concerning the award of a concession, including the name of

the successful tenderer, the grounds for any decision to reject his

application or tender and the grounds for any decision not to award a

contract for which there has been publication of a concession notice

or to recommence the procedure.

(2) Further to what is stated under sub-regulation (1), on

request from the party concerned, the contracting authority or

contracting entity shall as quickly as possible, and in any case within

fifteen days from receipt of a written request inform any tenderers

that have made an admissible tender of the characteristics and relative

advantages of the tender selected.

(3) The contracting authority or contracting entity may decide

to withhold certain information referred to in sub-regulation (1),

regarding the contract, where the release of such information would

impede law enforcement, would otherwise be contrary to the public

interest, would prejudice the legitimate commercial interests of

economic operators, whether public or private, or might prejudice fair

competition between such operators.

Exclusion and Black Listing of Candidates, Economic Operators

and Tenderers

Part VI of the Public Procurement Regulations, 2016, shall

mutatis mutandis apply to these regulations.

2016.

(1) In the case of concessions in the fields of defence

and security as referred to in Directive 2009/81/EC, an economic

operator may also be excluded from participation in a concession

award if on the basis of any means of evidence, including protected

data sources, he has been found not to possess the reliability

necessary to exclude risks to the security of the Republic of Malta.

(2) The period of exclusion in this scenario shall be three years

from the date of the relevant event.

Part III

Rules on Performance of Concession Contracts

Rules relating to subcontractors

(1) Contracting authorities shall ensure that the

obligations established under regulation 16(1)(i) are observed also by

sub-contractors.

(2) The concessionaire is liable for all acts or omissions

carried out by his subcontractors during the concession.

(1) In the concession documents, the contracting

authority or the contracting entity may ask the tenderer or the

applicant to indicate in its tender any share of the concession it may

intend to subcontract to third parties and any proposed

subcontractors

Provided that a contracting authority or the contracting

entity may impose the obligation to deliver the required information

directly on the concessionaire.

(2) The provisions of regulation 83 and of sub-regulation (1)

shall not affect the liability of the main concessionaire.

(3) In the case of works concessions and in respect of services

to be provided at the facility under the oversight of the contracting

authority or the contracting entity, after the award of the concession

and at the latest when the performance of the concession commences,

the contracting authority or the contracting entity shall require the

concessionaire to indicate to the contracting authority or the

contracting entity the name, contact details and legal representatives

of its subcontractors, involved in such works or services, insofar as

known at that point in time.

(4) The contracting authority or the contracting entity shall

require the concessionaire to notify it of any changes to the

information supplied under sub-regulation (3) during the course of

the concession as well as of the required information for any new

subcontractors which it subsequently involves in such works or

services.

(5) The proviso to sub-regulation (1), and sub-regulations (3)

and (4) shall not apply to suppliers.

(6) Contracting authorities and contracting entities may extend

the obligations provided for in sub-regulations (3) and (4) amongst

others to the following

(a)

services concessions other than those concerning

services to be provided at the facilities under the oversight of

the contracting authority or the contracting entity or to suppliers

involved in works or services concessions;

(b) subcontractors

of

the

concessionaire’s

subcontractors or further down the subcontracting chain.

Modifications of the Concession Contracts

(1) Concession contracts may be modified without a Modification of

concession

new concession award procedure in any of the following cases

contracts during

their term.

(a)

where the modifications, irrespective of their

monetary value, have been provided for in the initial concession

documents in clear, precise and unequivocal review clauses,

which may include value revision clauses, or options. Such

clauses shall state the scope and nature of possible

modifications or options as well as the conditions under which

they may be used. They shall not provide for modifications or

options that would alter the overall nature of the concession;

(b) for additional works or services by the original

concessionaire that have become necessary and that were not

included in the initial concession where a change of

concessionaire

(i) cannot be made for economic or technical

reasons such as requirements of interchangeability or

interoperability with existing equipment, services or

installations procured under the initial concession; and

(ii) would cause significant inconvenience or

substantial duplication of costs for the contracting

authority or contracting entity

Provided that in the case of concessions awarded by

a contracting authority or the contracting entity, for the purposes

of pursuing an activity other than those referred to in Schedule

4, any increase in value shall not exceed fifty per cent of the

value of the original concession;

(c)

where all of the following conditions are fulfilled

(i) the need for modification has been brought

about by circumstances which a diligent contracting

authority or contracting entity could not foresee;

(ii) the modification does not alter the overall

nature of the concession;

(iii) in the case of concessions awarded by a

contracting authority or the contracting entity, for the

purposes of pursuing an activity other than those referred

to in Schedule 4, any increase in value is not higher than

fifty per cent of the value of the initial concession;

(d) where a new concessionaire replaces the one to

which the contracting authority or the contracting entity had

initially awarded the concession as a consequence of either

(i) an unequivocal review clause or option in

conformity with the provisions of paragraph (a);

(ii) universal or partial succession into the

position of the initial concessionaire, following corporate

restructuring, including takeover, merger, acquisition or

insolvency, of another economic operator that fulfils the

criteria for qualitative selection initially established

provided that this does not entail other substantial

modifications to the contract and is not aimed at

circumventing the application of these regulations; or

(iii) in the event that the contracting authority or

contracting entity itself assumes the main concessionaire’s

obligations towards its subcontractors;

(e)

where the modifications, irrespective of their value,

are not substantial within the meaning of sub-regulation (5).

(2) When contracting authorities or contracting entities

modify a concession, which has an estimated value which meets or

exceeds the thresholds established under in Schedule 3, in terms of

the instances set out under sub-regulation (1)(b) and (c), it shall

publish a notice to that effect in the Official Journal of the European

Union. Such notice shall contain the information set out in Schedule

13 and shall be published in accordance with the provisions of

regulation 97.

(3) Without any need to verify whether the conditions set out

under sub-regulations (5)(a) to (d) are met, concessions may equally

be modified without a new concession award procedure where the

value of the modification is below both of the following values

(a)

the threshold set out under Schedule 3; and

(b)

ten per cent of the value of the initial concession

Provided that the modification may not alter the overall

nature of the concession. Where several successive modifications are

made, the value shall be assessed on the basis of the net cumulative

value of the successive modifications;

(4) For the purpose of the calculation of the value referred to

in sub-regulation (1)(b) and (c) and sub-regulation (3), the updated

value shall be the reference value when the concession includes an

indexation clause. If the concession does not include an indexation

clause, the updated value shall be calculated taking into account the

average inflation in Malta.

(5) A modification of a concession during its term shall be

considered to be substantial within the meaning of sub-regulation

(1)(e), where it renders the concession materially different in

character from the one initially concluded. In any event, without

prejudice to the provisions of sub-regulations (1), (2) and (3), a

modification shall be considered to be substantial where one or more

of the following conditions is met

(a)

the modification introduces conditions which, had

they been part of the initial concession award procedure, would

have allowed for the admission of applicants other than those

initially selected or for the acceptance of a tender other than that

originally accepted or would have attracted additional

participants in the concession award procedure;

(b) the modification changes the economic balance of

the concession in favour of the concessionaire in a manner

which was not provided for in the initial concession;

(c)

the modification extends the scope of the concession

considerably;

(d) where a new concessionaire replaces the one to

which the contracting authority or contracting entity had

initially awarded the concession in other cases than those

provided for under sub-regulation (1)(d).

(6) A new concession award procedure in accordance with

these regulations shall be required for other modifications of the

provisions of a concession during its term than those provided for

under sub-regulations (1), (2) and (3).

In granting or refusing a modification, the contracting

authority or the contracting entity shall take account of whether any

force majeure, or unforeseen events prevail and shall specify whether

such a modification could have been avoided. The contracting

authority or the contracting entity shall also establish under which

regulation this modification is being approved and a detailed

explanation and description of the modification in question.

(1) The contracting authority or the contracting entity is

to keep a full record of modifications requests, including the name of

the concessionaire involved and details of the documents specified in

regulation 88.

(2) The contracting authority or the contracting entity shall

forward to the Director every six months a report on the

modifications including all the information included under regulation

88 and sub-regulation (1) hereof

Provided that the Director may require further information

to that submitted by the contracting authority or the contracting

entity.

The document of the approved modification shall contain

the following information

(a)

a detailed description and explanation of the

modification;

(b) the reasons and the legal basis which brought about

the need for this modification;

(c)

the effect on the total cost of the concession contract

and any effect on the recurrent expenditure that will ensue;

(d) the timeframe expected for the execution of the

modification; and

(e)

the financial rate or any sum which should be paid in

respect of that modification.

(1) Once a contracting authority or a contracting entity Consent of the

approves a modification, the concessionaire must lay down in writing concessionaire

to execute the

whether he accepts to execute the same modification at the financial modification.

rates or sums and within the timeframe as specified by the contracting

authority or the contracting entity.

(2) If the concessionaire carries out the modification without

providing a written confirmation, it shall be deemed that he agreed to

perform the modification at the conditions stipulated by the

contracting authority or the contracting entity.

Any modification carried out against these regulations Unlawful

shall be deemed to be founded on unlawful consideration and the modifications.

concessionaire shall have no right for compensation with respect to

that modification unless he shows that he was unaware about such

irregularity.

The Attorney General on behalf of the Government may Action to

institute civil proceedings in a court of law for the restoration of recoup

payments.

payments received by a concessionaire in bad faith in relation to

modifications executed against these regulations. Such action shall

not be subject to any prescriptive period.

A concessionaire shall desist from executing a Duty on

modification unless he is furnished with a written copy of the contractors.

approval from the contracting authority or the contracting entity

which specifies the regulation and paragraph under which the

modification is being approved.

(1) Disputes on whether a particular task forms part of Disputes on

the concession contract or else constitutes a modification to the modifications.

original concession between the contracting authority or the

contracting entity and the concessionaire shall not delay or suspend

the continuation of the concession contract, however, the

concessionaire shall have the right to assert his claim before of any

court or tribunal against the contracting authority or the contracting

entity to receive additional payment for that task if it results that it

does not form part of the original concession contract.

(2) Such action for additional compensation by the

concessionaire shall be barred by prescription on the lapse of two

years to be reckoned from the day when the concessionaire becomes

aware or could have become aware of that task.

Termination of Concession Contracts

(1) Contracting authorities can terminate a contract

during its term, where

(a)

a modification of the concession has taken place,

which would have required a new concession award procedure

pursuant to regulation 85;

(b) the concessionaire has been, at the time of

concession award, in one of the situations referred to in

regulation 192 of the Public Procurement Regulations, 2016,

and should therefore have been excluded from the concession

award procedure;

(c)

a contracting authority or contracting entity has

awarded the concession without complying with its obligations

under the Treaties, Directive 2014/23/EU of the European

Parliament and of the Council of 26 February 2014 on the award

of concession contracts or these regulations;

(d) the contractor fails to discharge any obligation

which he has contracted.

(2) If the contracting authority or the contracting entity has no

valid reason for the termination, it is to compensate the contractor for

all his expenses and work and to pay him a sum to be fixed by the

court, according to circumstances, but not exceeding the profits

which the contractor could have made by the contract.

(3) If the contracting authority or the contracting entity has

valid reason for the termination, it is to pay the contractor only such

sum which shall not exceed the actual proven expenses and work of

the contractor.

(4) Any payment made in advance to the contractor before the

termination of the contract shall be applied to the sums due in terms

of sub-regulations (2) or (3) and the contractor shall return any

resulting excess to the contracting authority or the contracting entity.

(5) The contract shall be immediately terminated when the

contracting authority or the contracting entity informs the contractor,

by any means whatsoever, of his decision to terminate the contract,

and this without the need of any authorization or confirmation by any

court or Board.

Part IV

Rules common to Concessions which meet or exceed the threshold

Publications

(1) Contracting authorities and contracting entities Concession

wishing to award a concession shall make known their intention by notices.

means of a concession notice.

(2) Concession notices shall contain the information referred

to in Schedule 7 and, where appropriate, any other information

deemed useful by the contracting authority or entity, in accordance

with the format of standard forms.

(3) Contracting authorities and contracting entities wishing to

award a concession for social and other specific services listed in

Schedule 6 shall make known their intention of the planned

concession award through the publication of a prior information

notice. Those notices shall contain the information set out in Schedule

8. (4) By way of derogation from the provisions of sub-

regulation (1), contracting authorities or contracting entities shall not

be required to publish a concession notice where the works or

services can be supplied only by a particular economic operator for

any of the following reasons

(a)

the aim of the concession is the creation or

acquisition of a unique work of art or artistic performance;

(b)

the absence of competition for technical reasons;

(c)

the existence of an exclusive right;

(d) the protection of intellectual property rights and

exclusive rights other than those defined in regulation 2.

(5) The exceptions set out in sub-regulation (4)(b), (c) and (d)

only apply when no reasonable alternative or substitute exists and the

absence of competition is not the result of an artificial narrowing

down of the parameters of the concession award.

(6) By way of derogation from the provisions of sub-

regulation (1), the contracting authority or contracting entity shall not

be required to publish a new concession notice where no applications,

no tenders, no suitable tenders or no suitable applications have been

submitted in response to a prior concession procedure, provided that

the initial conditions of the concession contract are not substantially

altered and that a report is sent to the Commission, where it so

requests.

(7) For the purposes of sub-regulation (6), a tender shall be

considered not to be suitable where it is irrelevant to the concession,

being manifestly incapable, without substantial changes, of meeting

the contracting authority or contracting entity’s needs and

requirements as specified in the concession documents.

(8) For the purposes of the sub-regulation (6), an application

shall be considered not to be suitable

(a)

where the applicant concerned shall or may be

excluded pursuant to regulations 193, 194(a) and (b) and 199 of

the Public Procurement Regulations, 2016, or does not meet the

selection criteria set out by the contracting authority or the

contracting entity pursuant to the provisions of regulation 77;

(b) where applications include tenders which are not

suitable within the meaning of the sub-regulation (7).

(1) Not later than forty-eight days after the award of a

concession, the contracting authorities and contracting entities shall,

in accordance with the procedures laid down in regulation 97, send a

concession award notice on the results of the concession award

procedure. For social and other specific services listed in Schedule 6,

such notices may however be grouped on a quarterly basis. In that

case they shall send the grouped notices within forty-eight days of the

end of each quarter.

(2) Concession award notices shall contain the information set

out in Schedule 9 or in relation to concessions for social and other

specific services listed in Schedule 6, the information set out in

Schedule 10, and shall be published in accordance with the provisions

of regulation 97.

(1) Concession notices, concession award notices and

the notice referred to in regulation 85(2) shall include the information

set out in Schedules 7, 9 and 10 and in the format of standard forms,

including standard forms for corrigenda.

(2) The notices referred to in sub-regulation (1) shall be drawn

up, transmitted by electronic means to the Publications Office of the

European Union and published in accordance with Schedule 11.

(3) The Publications Office of the European Union shall give

the contracting authority or contracting entity confirmation of the

receipt of the notice and of the publication of the information sent,

indicating the date of publication which shall constitute proof of

publication.

(4) Concession notices shall be published in full in one or

more of the official languages of the institutions of the Union as

chosen by the contracting authority or contracting entity. That

language version or those language versions shall constitute the sole

authentic text or texts. A summary of the important elements of each

notice shall be published by the Publications Office of the European

Union in the other official languages of the institutions of the Union.

(5) Concession notices, concession award notices and adverts

on the Gazette shall not be published at national level before

publication by the Publications Office of the European Union unless

publication at Union level does not take place forty-eight hours after

the Publications Office of the European Union confirms receipt by the

contracting authority or the contracting entity of the notice as referred

to in sub-regulations (2) and (3). Concession notices, concession

award notices and adverts on the Gazette published at national level

shall not contain information other than that contained in the notices

dispatched to the Publications Office of the European Union but shall

indicate the date of dispatch of the notice to the Publications Office of

the European Union.

Part V

Remedies

Remedies before Closing Date of a Call for Competition

Prospective candidates may, prior to the closing date of a Remedies

call for competition, file a reasoned application before the Public before

date of a call for

Contracts Review Board

competition.

(a)

to set aside or ensure the setting aside of decisions

including clauses contained in the procurement document and

clarification notes taken unlawfully at this stage or which are

proven to be impossible to perform; or

(b)

to determine issues relating to the submission of an

offer through the government’s e-procurement platform; or

(c)

to remove discriminatory technical, economic or

financial specifications which are present in the call for

competition, in the concession documents, in clarifications

notes or in any other document relating to the contract award

procedure; or

(d) to correct errors or to remove ambiguities of a

particular term or clause included in a call for competition, in

the concession documents, in clarifications notes or in any other

document relating to the concession award procedure; or

(e)

to cancel the call for competition on the basis that

the call for competition is in violation of any law or is likely to

violate a particular law if it is continued.

(1) The application by the complainant shall be affixed

on the notice board of the Public Contracts Review Board and shall

also be published on the website of the same board.

(2) The Public Contracts Review Board shall notify the

contracting authority or the contracting entity and the Director about

this request.

(3) It shall be the responsibility of the prospective candidates

to visit the website of the Public Contracts Review Board and be

aware of the latest information published online.

The contracting authority or the contracting entity and any

interested party may, within five days from the date when the

application is uploaded on the website of the Public Contracts Review

Board, file a written reply. Such replies shall also be affixed to the

notice board of the Public Contracts Review Board and uploaded

online.

The Public Contracts Review Board shall decide the

application with urgency after hearing the parties, provided that not

more than one sitting may be fixed for such purpose. The final

decision of the Public Contracts Review Board may be appealed by

the aggrieved party before the Court of Appeal as provided in

regulations 119, 120, 121, 122, 123 and 124.

Pending the decision of the Public Contracts Review

Board the process of the call shall be suspended.

In its final decision the Public Contracts Review Board

must always establish the new deadline for the submission of the

offers.

The contracting authority or the contracting entity shall Implementation.

abide to the decision of the Public Contracts Review Board in the

shortest time possible and where the contracting authority fails to

implement the decision of the Public Contracts Review Board the

latter may report the matter to the minister responsible for that

contracting authority.

Any application filed in terms of this title shall be without No charge for

this type of

any charge.

application.

Appeals from Decisions taken after the Closing Date

for the Submission of a Tender

Any tenderer, or any person, having or having had an Appeals from

interest or who has been harmed or risks being harmed by an alleged decisions

after the closing

infringement or by any decision taken including a proposed award in date

submissions of a

obtaining a contract, a rejection of a tender or a cancellation of a call tender.

for tender after the lapse of the publication period, may file an appeal

by means of an objection before the Public Contracts Review Board,

which shall contain in a very clear manner the reasons for their

complaints.

The objection shall be filed within ten calendar days Filing of the

following the date on which the contracting authority or the application.

contracting entity by fax or other electronic means sent its proposed

award decision or the rejection of a tender or the cancellation of the

call for tenders after the lapse of the publication period.

The communication to each candidate of the proposed Communication

award or of the cancellation of the call shall be accompanied by a to

or candidate.

summary of the relevant reasons relating to the rejection of the tender

or the reasons why the call for tenders is being cancelled after the

lapse of the publication period, and by a precise statement of the

exact standstill period.

The objection shall only be valid if accompanied by a Deposit.

deposit equivalent to 0.50 per cent of the estimated value set by the

contracting authority or the contracting entity of the whole tender or

if the tender is divided into lots according to the estimated value of

the tender set by the contracting authority for each lot submitted by

the tenderer, provided that in no case shall the deposit be less than

four hundred euro (€400) or more than fifty thousand euro (€50,000)

which may be refunded as the Public Contracts Review Board may

decide in its decision.

The Secretary of the Public Contracts Review Board shall

immediately notify the Director and the contracting authority or the

contracting entity that an objection had been filed with his authority

thereby immediately suspending the award procedure.

The contracting authority or the contracting entity shall be

precluded from concluding the concession 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.

The procedure to be followed in submitting and

determining appeals as well as the conditions under which such

appeals may be filed shall be the following

(a)

any decision by the Special Contracts Committee or

by the contracting authority or the contracting entity, shall be

made public by affixing it to the notice-board of the contracting

authority or the contracting entity or by uploading it on

government’s e-procurement platform prior to the award of the

contract;

(b) the appeal of the complainant shall also be affixed to

the notice-board of the Public Contracts Review Board and shall

be communicated by fax or by other electronic means to all

participating tenderers;

(c)

the contracting authority or the contracting entity

and any interested party may, within ten calendar days from the

day on which the appeal is affixed to the notice-board of the

Department of Contracts or of the contracting authority or the

contracting entity and uploaded where applicable on the

Government’s e-procurement platform, file a written reply to

the appeal. These replies shall also be affixed to the notice-

board of the Public Contracts Review Board and where

applicable it shall also be uploaded on the Government’s e-

procurement platform;

(d) after the preparatory process is duly completed, the

head of the contracting authority or the contracting entity shall

within ten days forward to the Chairman of the Public Contracts

Review Board all documentation pertaining to the call for

tenders in question including files, tenders submitted, copies of

deposit receipts and any motivated letter;

(e)

the secretary of the board shall inform all the

participants of the call for tenders, and the contracting authority

or the contracting entity of the date or dates as the case maybe

when the appeal will be heard;

(f)

when the oral hearing is concluded, the Public

Contracts Review Board, if it does not deliver the decision on

the same day, shall reserve decision for the earliest possible date

to be fixed for the purpose, but not later than six weeks from the

day of the oral hearing

Provided that for serious and justified reasons

expressed in writing by means of an order notified to all the

parties, the Public Contracts Review board may postpone the

judgment for a later period;

(g) the secretary of the board shall keep a record of the

grounds of each adjournment and of everything done in each

sitting; and

(h) after evaluating all the evidence and after

considering all submissions put forward by the parties, the

Public Contracts Review Board shall decide whether to accede

or reject the appeal.

Ineffectiveness of a Concession Contract

(1) An interested party or a tenderer may file an Ineffectiveness

application before the Public Contracts Review Board to declare that of a contract.

a concession contract with an estimated value which meets or exceeds

the threshold established under Schedule 3 is ineffective.

(2) An interested party may only request the Public Contracts

Review Board to declare a signed concession contract ineffective if

the contracting authority or the contracting entity 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 2014/23/EC.

(3) Any tenderer may also request the Public Contracts

Review Board to declare a contract ineffective in the following two

instances

(a)

when, notwithstanding an appeal is lodged before

the Public Contracts Review Board, a contracting authority or

the contracting entity concludes the contract before a final

decision is given by the Public Contracts Review Board; or

(b) when the contract is concluded by a contracting

authority or the contracting entity before the expiry of the

period for the filing of an appeal as provided for in regulation

106. (4) The provisions of sub-regulation (2) shall not apply where

(a)

the contracting authority or the contracting entity

considers that the award of a contract without prior publication

of a contract notice in the Official Journal of the European

Union is permissible in accordance with Directive 2014/23/EC;

(b) the contracting authority or the contracting entity

has published in the Official Journal of the European Union a

notice as described in Article 3a of Directive 89/665 expressing

its intention to conclude the contract; and

(c)

the contract has not been concluded before the

expiry of a period of at least ten calendar days with effect from

the day following the date of the publication of this notice.

Apart from the declaration for the ineffectiveness of a

contract the applicant may request the Public Contracts Review Board

to liquidate and order the contracting authority or the contracting

entity to compensate him for actual damages suffered.

The application must be served to the contracting

authority or the contracting entity and to all signatories of the

concession contract, sought to be declared ineffective, who shall have

twenty days to file a reply.

(1) If the Public Contracts Review Board declares a

contract to be ineffective, it shall impose penalties on the contracting

authority or the contracting entity after assessing in its decision all

relevant factors, including the seriousness of the infringement and the

behaviour of the contracting authority or the contracting entity.

(2) The Public Contracts Review Board may not consider a

contract ineffective, even though it has been awarded illegally on the

grounds mentioned in regulation 113, if the Public Contracts 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.

The penalties imposed by the Public Contracts Review

Board shall consist of

(a)

the imposition of fines on the contracting authority

or the contracting entity, 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

(b)

the shortening of the duration of the contract

Provided that the award of damages prescribed in

regulation 114 shall not be considered as an appropriate alternative

penalty for the purposes of this regulation.

Applications for the ineffectiveness of a contract shall be Admissibility of

applications.

deemed admissible if they are made

(a)

before the expiry of at least thirty calendar days with

effect from the day following the date on which

(i) the contracting authority or the contracting

entity published a contract award notice, provided that this

notice includes justification of the decision to award the

contract without prior publication of a contract notice in

the Official Journal of the European Union; or

(ii) the contracting authority or the contracting

entity informed the tenderers and candidates concerned of

the conclusion of the contract; and

(b) in any other case 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.

Court of Appeal

Any party who feels aggrieved by a decision taken by the Appeal to the

Public Contracts Review Board may appeal to the Court of Appeal as court of appeal.

constituted in accordance with article 41(1) of the Code of Cap. 12.

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.

The appeal application shall be addressed against the Parties to the

contracting authority or the contracting entity, the recommended appeal.

tenderer, if any, and any other party involved in the proceedings

before the Public Contracts Review Board, who may file a written

reply within twenty days from the date of service

Provided that if the appellant fails to try to serve the appeal

application on all the parties above-mentioned within two weeks of

the filing of the appeal, the Court, after hearing during the first sitting

of the appeal the reasons why service was not effected, may declare

by means of a decree delivered in open court that the appeal is

deserted with expenses to be borne by the appellant.

(1) 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.

(2) 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.

A contracting authority or the contracting entity may only

refer a matter to the Court of Appeal in relation to a decision taken by

the Public Contracts Review Board relating to the ineffectiveness of a

concession contract, penalties and the award of damages.

If, during the hearing of the appeal, the Court finds that

the application is frivolous and vexatious, the Court may impose on

the party so guilty a penalty, to be paid to the contracting authority or

the contracting entity, of between one thousand euro (€1,000) and five

thousand euro (€5,000).

The Court may, for serious and necessary reasons, by

means of a decree, extend for a reasonable period the judicial time-

limits referred to in this Part.

No application for a re-trial from a decision of the Court

of Appeal may be made if, after the final decision has been given, the

concession contract has been signed between the contracting

authority or the contracting entity and the recommended tenderer and

no request for the suspension of the execution of the decision has

been made.

Schedule 1

List of contracting authorities

Office of the Prime Minister/Permanent Secretary’s Office/Department

of Corporate Services

Ministry for European Affairs and Implementation of the Electoral

Manifesto/Permanent Secretary’s Office/Department of Corporate

Services

Ministry for Foreign Affairs/Permanent Secretary’s Office/Department

of Corporate Services

Ministry for Education and Employment/Permanent Secretary’s Office/

Operations Department

Ministry for Transport and Infrastructure/Permanent Secretary’s Office/

Department of Corporate Services

Ministry for Gozo/Permanent Secretary’s Office/Department of

Corporate Services

Ministry for Social Dialogue, Consumer Affairs and Civil Liberties/

Permanent Secretary’s Office/Department of Corporate Services

Ministry for the Economy, Investment and Small Business/Permanent

Secretary’s Office/Department of Corporate Services

Ministry for Finance/Permanent Secretary’s Office/Department of

Corporate Services

Ministry for the Family and Social Solidarity/Permanent Secretary’s

Office/Department of Corporate Services

Ministry for Justice, Culture and Local Government/Permanent

Secretary’s Office/Department of Corporate Services

Ministry for Tourism/Permanent Secretary’s Office/Department of

Corporate Services

Ministry for Home Affairs and National Security/Permanent Secretary’s

Office/Department of Corporate Services

Ministry for Sustainable Development, the Environment and Climate

Change/Permanent Secretary’s Office/Department of Corporate

Services

Ministry for Competitiveness and Digital, Maritime and Services

Economy/Permanent Secretary’s Office/Department of Corporate

Services

Ministry for Health/Permanent Secretary’s Office/Department of

Corporate Services

Malta Standards Authority

Broadcasting Authority

Centre for Development, Research and Training

Internal Audit and Investigations Directorate

EuroMedITI Ltd

Armed Forces of Malta

Industrial Projects and Services Ltd

Public Service Commission

Government Printing Press

Electoral Office

Mediterranean Academy for Diplomatic Studies

International Institute on Ageing

Planning and Priorities Co-ordination Division

Funds and Programme Division

Malta Information Technology Agency (MITA)

Malta Communications Authority

Grand Harbour Regeneration Corporation p.l.c.

Malta Government Technology Investments Limited (MGTIL)

Transport Malta

Paying Agency

Malta Resources Authority/Regulator for Energy and Water Services

Building and Engineering

•

Construction and Maintenance

•

EU Affairs Department

•

Cleansing and Maintenance Department

•

Building Construction Industry Department

•

Financial Management Department

•

Project Design and Implementation Department

•

Agriculture and Fisheries Regulation Department

•

Strategy and Support Division

•

Services Division

•

Building Industry Consultative Council

•

Manufacturing and Services

•

Fisheries Control

•

Food and Veterinary Services

•

Oil Exploration

•

WasteServ Malta Ltd.

•

Rural Development and Aquaculture

•

European Union Programmes Agency

•

National Archives

•

Department of Regulatory Compliance

•

Directorate for EU and International Affairs

•

Examinations

•

Foundation for Tomorrow’s Schools

•

Foundation for Educational Services

•

Fondazzjoni Patrimonju Malti

•

Institute for Tourism Studies

•

Junior College

•

Jobsplus

•

Malta College of Arts, Science and Technology

•

National Commission for Higher Education

•

Maltese National Commission for UNESCO

•

SportMalta

•

Malta Libraries

•

Public Broadcasting Services Ltd.

•

University of Malta

•

Malta Council for Science and Technology

•

Lotteries and Gaming Authority

•

Malta Statistics Authority

•

Malta Financial Services Authority

•

Malta Stock Exchange

•

Customs Department

•

Contracts Department

•

Lotteries Department

•

Inland Revenue Department

•

Treasury Department

•

Economic Policy Division

•

VAT Division

•

Gozo Channel (Operations) Ltd.

•

Financial Intelligence Analysis Unit

•

Enemalta p.l.c.

•

Water Services Corporation

•

Malta Air Traffic Services Ltd. (MATS)

•

Malta Enterprise

•

Malta Industrial Parks Ltd.

•

MGI/MIMCOL

•

Tax Compliance Unit

•

Collective Bargaining Unit

•

Privatisation Unit

•

Capital Transfer Duty

•

Local Government Department

•

Police Department

•

Local Councils

•

Agency for the Welfare of Asylum Seekers (AWAS)

•

Civil Protection

•

Civil Registration

•

Public Registry

•

Land Registry

•

Correctional Services

•

Elderly and Community Care

•

Occupational Health and Safety Authority

•

National Blood Transfusion Centre

•

Foundation for Medical Services

•

Health

•

Mater Dei Hospital

•

Mount Carmel Hospital

•

Zammit Clapp Hospital

Malta Tourism Authority

Environment and Resources Authority

Planning Authority

Mediterranean Conference Centre

St James Cavalier Creativity Centre

Hertitage Malta

National Council for Culture and the Arts

National Orchestra Ltd

Superintendence of Cultural Heritage

Manoel Theatre

Aċċess

Appoġġ

Attorney General

Identity Malta

National Employment Authority

Housing Authority

Malta Arbitration Centre

Foundation for Social Welfare Services

Benefit Fraud and Investigations

Judicial

Welfare Committee

Data Protection Commission

Commission on Domestic Violence

Commission for the Promotion of Equality for Men and Women

National Commission on the abuse of drugs, alcohol and other

dependencies

National Commission for Persons with Disability

National Commission for the Family

Malta Council for Economic and Social Development

Industrial and Employment Relations

Sapport

Sedqa

Social Security

Social Welfare Standards

Office of the Commissioner for Voluntary Organisations

Office of the Commissioner for Children.

Medicines Authority

Cooperatives Board

Consumer and Competitive Division

Commerce Division

Malta National Laboratory

Notary to Government

Government Property Division

Joint Office

Projects Malta Ltd

Central Procurement Supplies Unit

Employment Commission

Aġenzija Żgħażagħ

National Literacy Agency

Institute for Education

Schedule 2

List of the Activities referred to in the definition

of Execution of Works

(Regulation 2)

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division

Group

Class

Subject

Notes

Construction

This division includes: 45000000

construction

of

new

buildings

and

works,

restoring

and

common

repairs.

45.1

Site preparation

45100000

45110000

45.11

This class includes

-

demolition of buildings

and other structures,

-

clearing of building

sites,

-

earth moving

excavation, landfill,

levelling and grading

of construction sites,

trench digging, rock

removal, blasting, etc.,

-

site preparation for

mining,

-

overburden removal

and other development

and preparation of

mineral properties and

sites.

This class also includes

-

building site drainage,

-

drainage of agricultural

or forestry land.

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division

Group

Class

Subject

Notes

45120000

45.12

Test drilling and This class includes

boring

-

test drilling, test boring

and core sampling for

construction,

geophysical,

geological or similar

purposes.

This class excludes

-

drilling of production

oil or gas wells, see

11.20,

-

water well drilling, see

45.25,

-

shaft sinking, see

45.25,

-

oil and gas field

exploration,

geophysical,

geological and seismic

surveying, see 74.20.

45.2

Building

of

45200000

complete

constructions or

parts

thereof;

civil engineering

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division

Group

Class

Subject

Notes

45210000

45.21

General

This class includes

construction of

Except

buildings

and -

construction of all

types of buildings

civil engineering

-

construction of civil

works

45213316

engineering

45220000

constructions,

45231000

-

bridges, including

45232000

those for elevated

highways, viaducts,

tunnels and subways,

-

long-distance

pipelines,

communication and

power lines,

-

urban pipelines, urban

communication and

power lines,

-

ancillary urban works,

-

assembly and erection

of prefabricated

constructions on the

site.

This class excludes

-

service activities

incidental to oil and

gas extraction, see

11.20,

-

erection of complete

prefabricated

constructions from

self-manufactured

parts not of concrete,

see divisions 20, 26

and 28,

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division

Group

Class

Subject

Notes

-

construction work,

other than buildings,

for stadiums,

swimming pools,

gymnasiums, tennis

courts, golf courses

and other sports

installations, see 45.23,

-

building instal-lation,

see 45.3,

-

building com-pletion,

see 45.4,

-

architectural and

engineering activities,

see 74.20,

-

project manage-ment

for construction, see

74.20.

45.22

Erection of roof This class includes

45261000

covering

and

frames

-

erection of roofs,

-

roof covering,

-

waterproofing.

45212212

45.23

Construction of This class includes

and DA03

highways, roads,

airfields

and -

construction of

45230000

highways, streets,

sport facilities

roads, other vehicular

except

and pedestrian ways,

-

construction of

- 45231000

railways,

-

construction of airfield

- 45232000

runways,

-

construction work,

- 45234115

other than buildings,

for stadiums,

swimming pools,

gymnasiums, tennis

courts, golf courses

and other sports

installations,

-

painting of markings

on road surfaces and

car parks.

This class excludes

-

preliminary earth

moving, see 45.11.

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division

Group

Class

Subject

Notes

includes 45240000

45.24

Construction of This

class

water projects

construction of

-

waterways, harbour

and river works,

pleasure ports

(marinas), locks, etc.,

-

dams and dykes,

-

dredging,

-

subsurface work.

45250000

45.25

Other

This class includes

construction

45262000

work involving -

construction activities

specialising in one

special trades

aspect common to

different kinds of

structures, requiring

specialised skill or

equipment,

-

construction of

foundations, including

pile driving,

-

water well drilling and

construction, shaft

sinking,

-

erection of non-self-

manufactured steel

elements,

-

steel bending,

-

bricklaying and stone

setting,

-

scaffolds and work

platform erecting and

dismantling, including

renting of scaffolds

and work platforms,

-

erection of chimneys

and industrial ovens.

This class excludes

-

renting of scaffolds

without erection and

dismantling, see 71.32.

45.3

Building

45300000

installation

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division

Group

Class

Subject

Notes

45213316

45.31

Installation

of This class includes

electrical wiring

installation in buildings or

45310000

and fittings

other construction projects

Except

of

- 45316000

-

electrical wiring and

fittings,

-

telecommunica-tions

systems,

-

electrical heating

systems,

-

residential antennas

and aerials,

-

fire alarms,

-

burglar alarm systems,

-

lifts and escalators,

-

lightning conduc-tors,

etc.

45.32

Insulation

work This class includes

45320000

activities

-

installation in

buildings or other

construction projects

of thermal, sound or

vibration insulation.

This class excludes

-

waterproofing, see

45.22.

45.33

Plumbing

This class includes

45330000

-

installation in

buildings or other

construction projects

of

-

plumbing and sanitary

equipment,

-

gas fittings,

-

heating, ventilation,

refrigeration or air-

conditioning

equipment and ducts,

-

sprinkler systems.

This class excludes

-

installation of

electrical heating

systems, see 45.31.

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division

Group

Class

Subject

Notes

45234115

45.34

Other building This class includes

45316000

installation

45340000

-

installation of

illumination and

signalling systems for

roads, railways,

airports and harbours,

-

installation in

buildings or other

construction projects

of fittings and fixtures

n.e.c.

45.4

Building

45400000

completion

45410000

45.41

Plastering

This class includes

-

application in

buildings or other

construction projects

of interior and exterior

plaster or stucco,

including related

lathing materials.

45.42

Joinery

45420000

This class includes

installation

-

installation of not self-

manufactured doors,

windows, door and

window frames, fitted

kitchens, staircases,

shop fittings and the

like, of wood or other

materials,

-

interior completion

such as ceilings,

wooden wall

coverings, movable

partitions, etc.

This class excludes

-

laying of parquet and

other wood floor

coverings, see 45.43.

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division

Group

Class

Subject

Notes

45430000

45.43

Floor and wall This class includes

covering

-

laying, tiling, hanging

or fitting in buildings

or other construction

projects of

-

ceramic, concrete or

cut stone wall or floor

tiles,

-

parquet and other

wood floor coverings

carpets and linoleum

floor coverings,

-

including of rubber or

plastic,

-

terrazzo, marble,

granite or slate floor or

wall coverings,

-

wallpaper.

45.44

Painting

and This class includes

45440000

glazing

-

interior and exterior

painting of buildings,

-

painting of civil

engineering structures,

-

installation of glass,

mirrors, etc.

This class excludes

-

installation of

windows, see 45.42.

45.45

Other building This class includes

45212212

completion

and

DA04

45450000

-

installation of private

swimming pools,

-

steam cleaning, sand

blasting and similar

activities for building

exteriors,

-

other building

completion and

finishing work n.e.c.

This class excludes

-

interior cleaning of

buildings and other

structures, see 74.70.

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division

Group

Class

Subject

Notes

45.5

Renting

of

45500000

construction or

demolition

equipment with

operator

45500000

45.50

This class excludes

-

renting of construction

or demolition

machinery and

equipment without

operators, see 71.32.

1 Council Regulation (EEC) No 3037/90 of 9 October 1990 on the statistical classification of

economic activities in the European Community

Schedule 3

Values of thresholds

(Regulation 57)

The values of the thresholds applicable to Public Contracts is as follows net

of Value Added Tax

€5,225,000 for both works and service concession

Schedule 4

Activities exercised by Contracting Entities

The provisions of these regulations governing concessions awarded by

contracting entities shall apply to the following activities

1. As far as gas and heat are concerned

(a)

the provision or operation of fixed networks intended to provide a

service to the public in connection with the production, transport or

distribution of gas or heat;

(b)

the supply of gas or heat to such fixed networks.

The supply by a contracting entity, as defined under regulations 2(2)(b)

and (c), of gas or heat to fixed networks which provide a service to the public

shall not be considered to be a relevant activity within the meaning of

paragraph 1 where all of the following conditions are met

(i) the production of gas or heat by that contracting entity is

the unavoidable consequence of carrying out an activity other than those

referred to in this sub-paragraph or in paragraphs 2 and 3 of this

Schedule;

(ii) the supply to the public network is aimed only at the

economic exploitation of such production and amounts to not more than

twenty per cent of that contracting entity’s turnover on the basis of the

average for the preceding three years, including the current year.

For the purposes of these regulations, ‘supply’ includes the generation/

production, wholesale and retail sale of gas. However, production of gas in the

form of extraction falls within the scope of paragraph 4 of this Schedule.

2. As far as electricity is concerned

(a)

the provision or operation of fixed networks intended to provide a

service to the public in connection with the production, transport or

distribution of electricity;

(b)

the supply of electricity to such fixed networks.

For the purposes of these regulations, supply of electricity includes

generation/production, wholesale and retail sale of electricity.

The supply by a contracting entity referred to in paragraphs (b) and (c) of the

definition of the term "contracting entity" under regulation 2(2) of electricity to

networks which provide a service to the public shall not be considered to be a

relevant activity within the meaning of paragraph 1 of this schedule where all of

the following conditions are met

(a)

the production of electricity by that contracting entity takes place

because its consumption is necessary for carrying out an activity other than

those referred to in this sub-paragraph or in paragraphs 1 and 3 of this

Schedule;

(b) supply to the public network depends only on that contracting

entity’s own consumption and has not exceeded thirty per cent of that

contracting entity’s total production of energy, on the basis of the average for

the preceding three years, including the current year.

3. Activities relating to the provision or operation of networks providing a

service to the public in the field of transport by railway, automated systems,

tramway, trolley bus, bus or cable.

As regards transport services, a network shall be considered to exist where

the service is provided under operating conditions laid down by a competent

authority, such as conditions on the routes to be served, the capacity to be made

available or the frequency of the service.

4. Activities relating to the exploitation of a geographical area for the

purpose of the provision of airports and maritime or inland ports or other terminal

facilities to carriers by air, sea or inland waterway.

5. Activities relating to the provision of

(a)

postal services;

(b) other services than postal services, on condition that such

services are provided by an entity which also provides postal services within

the meaning of sub-paragraph (ii) and provided that the conditions set out in

regulation 27 of the Public Procurement of Entities operating in Water,

Energy, Transport and Postal Services Sectors Regulations, 2016, are not

satisfied in respect of the services falling within sub-paragraph (ii).

For the purpose of these regulations and without prejudice to relevant

legislation transposing Directive 97/67/EC

(i)

‘postal item’ means an item addressed in the final form in which

it is to be carried, irrespective of weight. In addition to items of

correspondence, such items also include for instance books, catalogues,

newspapers, periodicals and postal packages containing merchandise with or

without commercial value, irrespective of weight;

(ii)

‘postal services’ means services consisting of the clearance,

sorting, routing and delivery of postal items. This shall include both services

falling within as well as services falling outside the scope of the universal

service set up in conformity with the legislation transposing Directive 97/67/

EC;

(iii) ‘other services than postal services’ means services provided in

the following areas

-

mail service management services (services both

preceding and subsequent to despatch, including ‘mailroom

management services’),

-

services concerning postal items not included in sub-

paragraph (a), such as direct mail bearing no address.

6. Activities relating to the exploitation of a geographical area for the

purpose of

(a)

extracting oil or gas;

(b)

exploring for, or extracting, coal or other solid fuels.

Schedule 5

List of legal acts of the union referred to in sub-paragraph (ii)

of the proviso to the definition of the term contracting entity

[Regulation 2(2)]

Rights which have been granted by means of a procedure in which adequate

publicity has been ensured and where the granting of those rights was based on

objective criteria shall not constitute ‘special or exclusive rights’ within the

meaning of these regulations. The following lists procedures, ensuring adequate

prior transparency, for granting authorisations on the basis of other legislative acts

of the Union which do not constitute ‘special or exclusive rights’ within the

meaning of these regulations

(a)

Granting authorisation to operate natural gas installations in

accordance with the procedures laid down in Article 4 of Directive 2009/73/

EC;

(b) Authorisation or an invitation to tender for the construction of

new electricity production installations in accordance with Directive 2009/

72/EC;

(c)

The granting in accordance with the procedures laid down in

Article 9 of Directive 97/67/EC of authorisations in relation to a postal

service which is not or shall not be reserved;

(d) A procedure for granting an authorisation to carry on an activity

involving the exploitation of hydrocarbons in accordance with Directive 94/

22/EC;

(e)

Public service contracts within the meaning of Regulation (EC)

No 1370/2007 for the provision of public passenger transport services by

bus, tramway, rail or metro, which have been awarded on the basis of a

competitive tendering procedure in accordance with its Article 5(3), provided

that its length is in conformity with Article 4(3) or (4) of that Regulation.

Schedule 6

Services referred

[Regulation 8(2)]

Description

79611000-0; 75200000-8; 75231200-6; 75231240-8; 79622000-0

[Supply services of domestic help personnel]; 79624000-4 [Supply

services of nursing personnel] and 79625000-1 [Supply services of

medical personnel] from 85000000-9 to 85323000-9; 85143000-3,

98133100-5, 98133000-4 and 98200000-5 and 98500000-8 [Private

households with employed persons] and 98513000-2 to 98514000-9

[Manpower services for households, Agency staff services for

households, Clerical staff services for households, Temporary staff for

households, Home-help services and Domestic services]

85321000-5 and 85322000-2, 75000000-6 [Administration, defence

and social security services], 75121000-0, 75122000-7, 75124000-1;

from 79995000-5 to 79995200-7; from 80000000-4 Education and

training services to 80660000-8; from 92000000-1 to 92342200-2;

from 92360000-2 to 92700000-8;

79950000-8 [Exhibition, fair and congress organisation services],

79951000-5 [Seminar organisation services], 79952000-2 [Event

services], 79952100-3 [Cultural event organisation services],

79953000-9 [Festival organisation services], 79954000-6 [Party

organisation services], 79955000-3[Fashion shows organisation

services], 79956000-0 [Fair and exhibition organisation services]

75300000-9

75310000-2, 75311000-9, 75312000-6, 75313000-3, 75313100-4, Benefit services

75314000-0, 75320000-5, 75330000-8, 75340000-1

Description

98000000-3; 98120000-0; 98132000-7; 98133110-8 and 98130000-3

98131000-0

55100000-1 to 55410000-7; 55521000-8 to 55521200-0 [55521000-8 Hotel and restaurant

Catering services for private households, 55521100-9 Meals-on- services

wheels services, 55521200-0 Meal delivery service]. 55520000-1

Catering services, 55522000-5 Catering services for transport

enterprises, 55523000-2 Catering services for other enterprises or

other institutions, 55524000-9 School catering services 55510000-8

Canteen services, 55511000-5 Canteen and other restricted-clientele

cafeteria services, 55512000-2 Canteen management services,

55523100-3 School-meal services

79100000-5 to 79140000-7; 75231100-5

75100000-7 to 75120000-3; 75123000-4; 75125000-8 to 75131000-3 Other

75200000-8 to 75231000-4

75231210-9 to 75231230-5; 75240000-0 to 75252000-7; 794300000- Prison related services,

7; 98113100-9

79700000-1 to 79721000-4 [Investigation and security services, Investigation and security

Security services, Alarm-monitoring services, Guard services, services

Surveillance services, Tracing system services, Absconder-tracing

services, Patrol services, Identification badge release services,

Investigation services and Detective agency services] 79722000-

1[Graphology services], 79723000-8 [Waste analysis services]

64000000-6 [Postal and telecommunications services], 64100000-7 Postal Services

[Post and courier services], 64110000-0 [Postal services], 64111000-7

[Postal services related to newspapers and periodicals], 64112000-4

[Postal services related to letters], 64113000-1 [Postal services related

to parcels], 64114000-8 [Post office counter services], 64115000-5

[Mailbox rental], 64116000-2 [Post-restante services], 64122000-7

[Internal office mail and messenger services]

50116510-9 [Tyre-remoulding services], 71550000-8 [Blacksmith Miscellaneous services

services]

98900000-2 [Services provided by extra-territorial organisations and International services

bodies] and 98910000-5 [Services specific to international

organisations and bodies]

Schedule 7

Information to be included in Concession Notices

(Regulation 95)

1. Name, identification number (where provided for in national

legislation), address, including NUTS code, telephone, fax number, e-mail and

internet address of the contracting authority or entity and, where different, of the

service from which additional information may be obtained.

2. Type of contracting authority or entity and main activity exercised.

3. If the applications are to contain tenders, e-mail or internet address at

which the concession documents will be available for unrestricted and full direct

access, free of charge. Where unrestricted and full direct access, free of charge, is

not available in the cases referred to in regulation 76(4) an indication of how the

procurement documents can be accessed.

4. Description of the concession: nature and extent of works, nature and

extent of services, order of magnitude or indicative value and, where possible,

duration of the contract. Where the concession is divided into lots, this information

shall be provided for each lot. Where appropriate, description of any options.

5. CPV codes. Where the concession is divided into lots, this information

shall be provided for each lot.

6. NUTS code for the main location of works in case of works concessions

or NUTS code for the main place of performance service concessions; where the

concession is divided into lots, this information shall be provided for each lot.

7. Conditions for participation, including

(a)

where appropriate, indication whether the concession is restricted

to sheltered workshops, or whether its execution is restricted to the

framework of protected job programmes;

(b) where appropriate, indication whether the provision of the service

is reserved by law, regulation or administrative provision to a particular

profession; reference to the relevant law, regulation or administrative

provision;

(c)

a list and brief description of selection criteria where applicable;

minimum level(s) of standards possibly required; indication of required

information (self-declarations, documentation).

8. Time limit for the submission of applications or receipt of tenders.

9. Criteria which will be applied in the award of the concession where they

do not appear in other concession documents.

10. Date of dispatch of the notice.

11. 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.

12. Where appropriate, particular conditions to which performance of the

concession is subject.

13. Address where applications or tenders shall be transmitted.

14. Where appropriate, indication of requirements and conditions related to

the use of electronic means of communication.

15. Information as to whether the concession is related to a project and/or

programme financed by Union funds.

16. For works concessions, indication as to whether the concession is

covered by the GPA.

Schedule 8

Information to be included in Prior Information Notices concerning Concessions

for Social and Other Specific Services

[Regulation 95(3)]

1. Name, identification number (where provided for in national

legislation), address including NUTS code, telephone, fax number, e-mail and

internet address of the contracting authority or contracting entity and, where

different, of the service from which additional information may be obtained.

2. Where appropriate, e-mail or internet address at which the

specifications and any supporting documents will be available.

3. Type of contracting authority or contracting entity and main activity

exercised.

4. CPV codes; where the contract is divided into lots, this information

shall be provided for each lot.

5. NUTS code for the main place of delivery or performance of service

concessions.

6. Description of the services, indicative order of magnitude or value.

7. Conditions for participation.

8. Where applicable, time limit(s) for contacting the contracting authority

or contracting entity in view of participation.

9. Where applicable, brief description of the main features of the award

procedure to be applied.

10. Any other relevant information.

Schedule 9

Information to be included in Concession Award Notices

(Regulation 96)

1. Name, identification number (where provided for in national

legislation), address including NUTS code and, where appropriate, telephone, fax

number, e-mail and internet address of the contracting authority or entity and,

where different, of the service from which additional information may be obtained.

2. Type of contracting authority or entity and main activity exercised.

3. CPV codes.

4. NUTS code for the main location of works in case of works concessions

or NUTS code for the main place of performance in case of service concessions.

5. Description of the concession: nature and extent of works, nature and

extent of services, duration of the contract. Where the concession is divided into

lots, this information shall be provided for each lot. Where appropriate, description

of any options.

6. Description of award procedure used; in the case of award without prior

publication, justification.

7. Criteria referred to in regulation 79 which were used for award of the

concession or concessions.

8. Date of concession award decision or decisions.

9. Number of tenders received with respect of each award, including

(a)

number of tenders received from economic operators which are

small and medium enterprises;

(b)

number of tenders received from abroad;

(c)

number of tenders received electronically.

10. For each award, name, address including NUTS code and, where

applicable, telephone, fax number, e-mail address and internet address of the

successful tenderer(s) including

(a)

information whether the successful tenderer is small and medium

enterprise;

(b) information whether the concession was awarded to a

consortium.

11. Value and main financial terms of the awarded concession, including

(a)

fees prices and fines if any;

(b)

prizes and payments if any;

(c)

any other details relevant to the value of the concession as laid

down in regulation 55(1).

12. Information whether the concession is related to a project and/or

programme financed by Union funds.

13. Name and address of the body responsible for review and, where

appropriate, mediation procedures. Precise information concerning the deadline

for review procedures, 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.

14. Date(s) and reference(s) of previous publications in the Official Journal

of the European Union relevant to the concession(s) advertised in this notice.

15. Date of dispatch of the notice.

16. Method used to calculate the estimated value of the concession, if not

specified in other concession documents in accordance with regulations 53 to 56.

17. Any other relevant information.

Schedule 10

Information to be included in Concession Award Notices

concerning Concessions for Social and Other Specific Services

(Regulation 96)

1. Name, identification number (where provided for in national

legislation), address including NUTS code, where applicable, telephone, fax

number, e-mail and internet address of the contracting authority or entity and,

where different, of the service from which additional information may be obtained.

2. Type of contracting authority or entity and main activity exercised.

3. CPV codes; where the contract is divided into lots, this information

shall be provided for each lot.

4. Summary indication of the subject of the concession.

5. Number of tenders received.

6. Value of the successful tender, including fees and prices.

7. Name and address including NUTS code, telephone, fax number, e-mail

address and internet address of the successful economic operator(s).

8. Any other relevant information.

Schedule 11

Features concerning Publication

Publication of notices

1. The notices referred to in regulations 95 and 96 shall be sent by the

contracting authorities or contracting entities to the Publications Office of the

European Union and published in accordance with the following rules

-

Notices referred to in regulations 95 and 96 shall be published by

the Publications Office of the European Union

-

The Publications Office of the European Union shall give the

contracting authority or entity the confirmation referred to in regulation

97(2) and (3).

2. Format and procedures for sending notices electronically.

The format and procedure for sending notices electronically as established by

the Commission are made accessible at the internet address ‘http://

simap.europa.eu.’EN.

Schedule 12

List of International Social and Environmental Conventions

(Regulation 16)

ILO Convention 87 on Freedom of Association and the Protection of the

Right to Organise;

ILO Convention 98 on the Right to Organise and Collective Bargaining;

ILO Convention 29 on Forced Labour;

ILO Convention 105 on the Abolition of Forced Labour;

ILO Convention 138 on Minimum Age;

ILO Convention 111 on Discrimination (Employment and Occupation);

ILO Convention 100 on Equal Remuneration;

ILO Convention 182 on Worst Forms of Child Labour;

Vienna Convention for the protection of the Ozone Layer and its Montreal

Protocol on substances that deplete the Ozone Layer;

Basel Convention on the Control of Transboundary Movements of

Hazardous Wastes and their Disposal (Basel Convention);

Stockholm Convention on Persistent Organic Pollutants (Stockholm POPs

Convention);

Convention on the Prior Informed Consent Procedure for Certain Hazardous

Chemicals and Pesticides in International Trade (UNEP/FAO) (PIC

Convention) and its 3 regional Protocols.

Schedule 13

Information to be included in Notices of Modifications of a

Concession during its term

(Regulation 85)

1. Name, identification number (where provided for in national

legislation), address including NUTS code, telephone, fax number, e-mail and

internet address of the contracting authority or entity and, where different, of the

service from which additional information may be obtained.

2. CPV codes.

3. NUTS code for the main location of works in case of works concessions

or NUTS code for the main place of performance in service concessions.

4. Description of the concession before and after the modification: nature

and extent of the works, nature and extent of services.

5. Where applicable, modification of value of the concession, including

increase in prices or fees caused by the modification.

6. Description of the circumstances which have rendered necessary the

modification.

7. Date of concession award decision.

8. Where applicable, the name, address including NUTS code telephone,

fax number, e-mail address and internet address of the new economic operator or

operators.

9. Information whether the concession is related to a project and/or

programme financed by Union funds.

10. Name and address of the body responsible for review and, where

appropriate, mediation procedures. Precise information concerning the deadline

for review procedures, 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.

11. Date(s) and reference(s) of previous publications in the Official Journal

of the European Union relevant to the contract(s) concerned by this notice.

12. Date of dispatch of the notice.

13. Any other relevant information.

€7.74