155 tal-2017

L.N. 155 of 2017

FINANCIAL ADMINISTRATION AND AUDIT ACT

(CAP. 174)

Public Procurement (Amendment) Regulations, 2017

BY VIRTUE of the powers conferred by article 4 of the

Financial Administration and Audit Act, the Minister of Finance has

made the following regulations:-

The title of these regulations is the Public Procurement Citation.

(Amendment) Regulations, 2017, and these regulations shall be read

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

hereinafter referred to as the "principal regulations”

In paragraph (k) of sub-regulation (1) of regulation 7 of the Amends

principal regulations, for the words "in paragraph (i)" there shall be regulation

the principal

substituted the words "in paragraph (j)".

regulations.

Regulation 16 of the principal regulations shall be Amends

regulation 16 of

amended as follows

the principal

regulations.

(a)

in paragraph (m) of sub-regulation (1) thereof,

immediately after the words "signed by them", there shall be

added the words "or on their behalf"; and

(b) paragraph (b) of sub-regulation (2) thereof shall be

substituted by the following

"(b) Contracting authorities that are listed under

Schedule 16 also have the duty to open in public offers

submitted by economic operators for quotations which

have an estimated value exceeding five thousand euro

(€5000) but not exceeding ten thousand euro (€10,000)."

Regulation 73 of the principal regulations shall be Amends

regulation 73 of

amended as follows

the principal

regulations.

(a)

immediately after the words "listed in Schedule 2",

there shall be added the words "and in Schedule 16"; and

(b) for the words "falling under regulation 9(1)(a)" there

shall be substituted the words "starting from €10,000 up to the

threshold established under regulation 9(1)(a)".

Paragraph (c) of sub-regulation (4) of regulation 79 of the Amends

regulation 79 of

principal regulations shall be substituted by the following

the principal

regulations.

"(c) to publish, unless otherwise provided for in these

regulations, through government’s e-procurement platform, as

well as open in public, all calls for tenders with an estimated

value which does not exceed €250,000;".

In sub-regulation (1) of regulation 100 of the principal

regulations, for the words "and availability." there shall be substituted

the words "and availability:", and immediately thereafter there shall

be added the following new provisos

"Provided that the Head of a Contracting Authority, listed

in Schedule 1, may delegate his authority in writing, providing

the reasons for such delegation, to a senior official of an entity

forming part of the Contracting Authority, for the procurement

by direct order of supplies, works or services, where the value

does not exceed five hundred euro (€500). However the

procurement under the above shall not exceed a total value of

five thousand euro (€5,000) during a period of one calendar

year

Provided further that every six months, the senior official,

who receives such a delegation from the Head of the

Contracting Authority, shall provide the Head with a full list of

all procurement effected under this sub-regulation. The list must

include the date of the purchase, the name of the economic

operator, the nature of the purchase, the invoice number, the

payment reference, and the value of the supplies, works or

services

Provided finally the Head of the Contracting Authority

may retrieve this delegation at any time at his discretion.".

Regulation 153 of the principal regulations shall be

substituted by the following

"153. The negotiated procedure without prior publication

may be used for public supply contracts in the following

instances

(a) where no tenders or no suitable tenders or no

requests to participate or no suitable requests to participate

have been submitted in response to an open procedure or a

restricted procedure, provided that the initial conditions of

the contract are not substantially altered and that a report is

sent to the Commission where it so requests; or

(b) where the supplies can be supplied only by a

particular economic operator for any of the following

reasons

(i)

the aim of the procurement is the

creation or acquisition of a unique work of art or

artistic performance;

(ii)

competition is absent for technical

reasons;

(iii) the protection of exclusive rights,

including intellectual property rights

Provided that the exceptions set out in sub-

paragraphs (ii) and (iii) shall 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 procurement; or

(c) where in so far as is strictly necessary, for

reasons of extreme urgency brought about by events

unforeseeable by the contracting authority, the time limits

for the open or restricted procedures or competitive

procedures with negotiation cannot be complied with. The

circumstances invoked to justify extreme urgency shall not

in any event be attributable to the contracting authority; or

(d) where

the

products

involved

are

manufactured purely for the purpose of research,

experimentation, study or development; however,

contracts awarded pursuant to this paragraph shall not

include quantity production to establish commercial

viability or to recover research and development costs; or

(e) for additional deliveries by the original

supplier which are intended either as a partial replacement

of supplies or installations or as the extension of existing

supplies or installations where a change of supplier would

oblige the contracting authority to acquire supplies having

different technical characteristics which would result in

incompatibility or disproportionate technical difficulties in

operation and maintenance; the duration of such contracts

as well as that of recurrent contracts shall not, as a general

rule, exceed three years; or

(f) for supplies quoted and purchased on a

commodity market; or

(g) for the purchase of supplies on particularly

advantageous terms, from either a supplier which is

definitively winding up its business activities, or the

liquidator in an insolvency procedure, an arrangement with

creditors, or a similar procedure under national laws or

regulations.".

Regulation 154 of the principal regulations shall be

substituted by the following

"154. (1) The negotiated procedure without prior

publication may be used for public service contracts in the

following instances

(a) where no tenders or no suitable tenders or no

requests to participate or no suitable requests to participate

have been submitted in response to an open procedure or a

restricted procedure, provided that the initial conditions of

the contract are not substantially altered and that a report is

sent to the Commission where it so requests; or

(b) where the supplies can be supplied only by a

particular economic operator for any of the following

reasons

(i) the aim of the procurement is the

creation or acquisition of a unique work of art or

artistic performance;

(ii) competition is absent for technical

reasons;

(iii) the protection of exclusive rights,

including intellectual property rights

Provided that the exceptions set out in sub-

paragraphs (ii) and (iii) shall 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 procurement; or

(c) where in so far as is strictly necessary, for

reasons of extreme urgency brought about by events

unforeseeable by the contracting authority, the time limits

for the open or restricted procedures or competitive

procedures with negotiation cannot be complied with. The

circumstances invoked to justify extreme urgency shall not

in any event be attributable to the contracting authority; or

(d) for new works consisting in the repetition of

similar works entrusted to the economic operator to which

the same contracting authorities awarded an original

contract, provided that such works are in conformity with a

basic project for which the original contract was awarded

pursuant to a procedure for which a call for competition

has been published in accordance with these regulations;

or

(e) for public service contracts, where the

contract concerned follows a design contest organised in

accordance with these regulations and is to be awarded,

under the rules provided for in the design contest, to the

winner or one of the winners of the design contest; in the

latter case, all winners must be invited to participate in the

negotiations; or

(f) for the purchase of services on particularly

advantageous terms, from either a supplier which is

definitively winding up its business activities, or the

liquidator in an insolvency procedure, an arrangement with

creditors, or a similar procedure under national laws or

regulations.

(2) (a) If the negotiated procedure is used to carry out

repetition of similar services, the basic project shall indicate the

extent of possible additional services and the conditions under

which they will be awarded.

(b) As soon as the first project is put up for tender,

the possible use of this procedure shall be disclosed and the

total estimated cost of subsequent services shall be taken into

consideration by the contracting authorities when they apply the

thresholds established under Schedule 5.

(c) The negotiated procedure for repetition of

similar services may be resorted to only during the three years

following the conclusion of the original contract.".

Schedule 1 to the principal regulations shall be amended as Amends

Schedule 1 to

the principal

regulations.

(a)

the words "Building

Construction

Industry

Department" shall be deleted;

(b) for the words "St. James Cavalier Creativity

Centre", there shall be substituted the words "Fondazzjoni

Kreattività";

(c)

for the words "National Council for Culture and the

Arts", there shall be substituted the words "Arts Council Malta";

(d) for the word "Judicial" there shall be substituted the

words "Courts of Justice Department"; and

(e)

immediately after the words "Central Procurement

Supplies Unit", there shall be added the following

Office of the Commissioner for Mental Health

Customer Services Directorate

Projects and Development Directorate

Tourism and Economic Development Directorate

EcoGozo Regional Development Directorate

Office of the Chief Information Officer (Gozo)

Restoration Directorate

Department of Information

Building Regulation Office

Office of the Regulator IIP

Legal Aid Agency

Local Enforcement System Agency

Malta Mediation Centre

Pjazza Teatru Rjal

Teatru Malta

Valletta 2018 Foundation

Żfin Malta".

Schedule 2 to the principal regulations shall be amended as

(a)

the words "Ministry for Gozo/Permanent Secretary’s

Office/Department of Corporate Services" shall be deleted;

(b)

the words "Ministry for the Family and Social

Solidarity/Permanent Secretary’s

Office/Department

of

Corporate Services" shall be deleted;

(c)

the words "Ministry for Justice, Culture and Local

Government/Permanent Secretary’s Office/Department of

Corporate Services" shall be deleted;

(d)

the words "Broadcasting Authority" shall be deleted;

(e)

the words "Building

Construction

Industry

Department" shall be deleted;

(f)

the words "Public Broadcasting Services Ltd" shall

be deleted;

(g)

the words "Gozo Channel (Operations) Ltd" shall be

(h)

the words "Local Government Department" shall be

(i)

the words "Elderly and Community Care" shall be

(j)

the words "St. James Cavalier Creativity Centre"

shall be deleted;

(k) the words "National Council for Culture and the

Arts" shall be deleted;

(l)

the words "National Orchestra Ltd." shall be

(m) the words "Superintendence of Cultural Heritage"

shall be deleted;

(n)

the words "Manoel Theatre" shall be deleted;

(o)

the word "Appoġġ" shall be deleted;

(p)

the words "Attorney General" shall be deleted;

(q)

the words "Identity Malta" shall be deleted;

(r)

the words "Housing Authority" shall be deleted;

(s)

the words "Malta Arbitration Centre" shall be

(t)

the words "Foundation for Social Welfare Services"

shall be deleted;

(u) the words "Benefit Fraud and Investigations" shall

be deleted;

(v)

the word "Judicial" shall be deleted;

(w)

the words "Welfare Committee" shall be deleted;

(x) the words "National Commission on the abuse of

drugs, alcohol and other dependencies" shall be deleted;

(y)

the word "Sapport" shall be deleted;

(z)

the word "Sedqa" shall be deleted;

(aa)

the words "Social Security" shall be deleted;

(ab) the words "Social Welfare Standards" shall be

deleted;

(ac) the words "Office of the Commissioner for

Children" shall be deleted; and

(ad) the words "Notary to Government" shall be deleted.

In Schedule 16 to the principal regulations, immediately

after the words "Institute for Education", there shall be added the

following

"• Ministry for Justice, Culture and Local Government /

Permanent Secretary’s Office / Department of Corporate Services

Courts of Justice Department

Local Government Department

Notary to Government

Restoration Directorate

Office of the Regulator IIP

Arts Council Malta

Attorney General

Broadcasting Authority

Heritage Malta

Fondazzjoni Kreattività

Identity Malta

Legal Aid Agency

Local Enforcement System Agency

Malta Arbitration Centre

Malta Mediation Centre

National Orchestra Ltd.

Pjazza Teatru Rjal

Public Broadcasting Services Ltd.

Superintendence of Cultural Heritage

Teatru Malta

Teatru Manoel

Valletta 2018 Foundation

Żfin Malta

Ministry for the Family and Social Solidarity/Permanent

Secretary’s Office/ Department of Corporate Services

Elderly and Community Care

Appoġġ

Housing Authority

Foundation for Social Welfare Services

Benefit Fraud and Investigations

Welfare Committee

National Commission on the abuse of drugs, alcohol and

other dependencies

National Commission for the Family

•

Sapport

•

Sedqa

•

Social Security

•

Social Welfare Standards

•

Office of the Commissioner for Children

•

Ministry for Gozo/Permanent

Secretary’s

Office/

Department of Corporate Services

•

Projects and Development

•

Directorate (Gozo)

•

Customer Services

•

Tourism and Economic Development Directorate (Gozo)

•

EcoGozo Regional Development Directorate (Gozo)

•

Office of the Chief Information Officer (Gozo)

•

Gozo Channel (Operations) Ltd".

€0.90