26 tal-2018

L.N. 26 of 2018

FINANCIAL ADMINISTRATION AND AUDIT ACT

(CAP. 174)

Various Provisions relating to Public Procurement

(Amendment) Regulations, 2018

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 Various Provisions Citation.

relating to Public Procurement (Amendment) Regulations, 2018.

Part I

Amendments to the Public Procurement Regulations

This Part amends the Public Procurement Regulations, and Amendments to

it shall be read and construed as one with the Public Procurement the

Procurement

Regulations, hereinafter in this Part referred to as "the principal Regulations.

regulations".

Sub-regulation (1) of regulation 9 of the principal Amends

regulation 9 of

regulations shall be amended as follows

the principal

regulations.

(a)

in paragraph (a) thereof, for the words "one hundred

and thirty-five thousand euro (€135,000)" there shall be

substituted the words "one hundred forty-four thousand euro

(€144,000)"; and

(b) in paragraph (b) thereof, for the words "one hundred

and thirty-five thousand euro (€135,000)" there shall be

substituted the words "one hundred forty-four thousand euro

(€144,000)".

Immediately after sub-regulation (5) of regulation 90 of Amends

the principal regulations there shall be added the following new sub- regulation

the principal

regulation

regulations.

"(6) The Board shall have all such powers as are, by the

Code of Organization and Civil Procedure, vested in the Civil

Court, First Hall.".

In sub-regulation (1) of regulation 205 of the principal Amends

regulations, immediately after the words "registered letters" there regulation

of the principal

shall be added the words "or judicial letter".

regulations.

In sub-regulation (2) of regulation 209 of the principal

regulations, immediately after the words "registered mail" there shall

be added the words "or judicial letter".

Schedule 1 to the principal regulations shall be amended as

follows

(a)

the words "Paying Agency", "Agriculture and

Fisheries Regulation Department", "Fisheries Control", "Rural

Development and Aquaculture" and "Food and Veterinary

Services" shall be deleted; and

(b) immediately after the words

"Institute

for

Education" there shall be added the following

"•

Rural Development Department

•

Agriculture and Rural Payments Agency (ARPA)

•

Veterinary and Phytosanitary Regulation Division

•

Department of Fisheries and Aquaculture

•

Public Abattoir

•

Governance of Agricultural BioResources Agency

•

Pitkalija Ltd.

•

Environment and Resources Authority

•

Malta Resources Authority".

In Schedule 2 to the principal regulations, the words

"Ministry for the Environment, Sustainable Development and

Climate

Change/Permanent

Secretary’s

Office/Department

responsible for Corporate Services", "Paying Agency", "Agriculture

and Fisheries Regulation Department", "Fisheries Control", "Rural

Development and Aquaculture", "Food and Veterinary Services" and

"WasteServe Malta Ltd" shall be deleted.

Schedule 5 to the principal regulations shall be amended as

follows

(a)

in paragraph (a) thereof, for the words "EUR

5,225,000" there shall be substituted the words "EUR

5,548,000";

(b)

in paragraph (b) thereof, for the words "EUR

135,000" there shall be substituted the words "EUR 144,000";

and

(c)

in paragraph (c) thereof, for the words "EUR

209,000" there shall be substituted the words "EUR 221,000".

In Schedule 16 to the principal regulations, immediately Amends

after the words "Gozo Heliport Limited" there shall be added the Schedule

the principal

following

regulations.

"•

Ministry for the Environment, Sustainable

Development and Climate Change/Permanent Secretary’s

Office/Department responsible for Corporate Services

•

Rural Development Department

•

Agriculture and Rural Payments Agency (ARPA)

•

Veterinary and Phytosanitary Regulation Division

•

Department of Fisheries and Aquaculture

•

Public Abattoir

•

Governance of Agricultural BioResources Agency

•

Pitkalija Ltd.

•

Environment and Resources Authority

•

Malta Resources Authority

•

WasteServe Malta Ltd".

Part II

Amendments to the Concession Contracts Regulations

This Part amends the Concession Contracts Regulations, Amendments to

and it shall be read and construed as one with the Concession the

Contracts

Contracts Regulations, hereinafter in this Part referred to as "the Regulations.

principal regulations".

In Schedule 3 to the principal regulations, for the words Amends

Schedule 3 to

"€5,225,000" there shall be substituted the words "€5,548,000".

the principal

regulations.

Part III

Amendments to the Public Procurement of Entities operating in the

Water, Energy, Transport and Postal Services Sectors Regulations

This Part amends the Public Procurement of Entities

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

Regulations, and it shall be read and construed as one with the Public

Procurement of Entities operating in the Water, Energy, Transport and

Postal Services Sectors Regulations, hereinafter in this Part referred

to as "the principal regulations".

The definition "procurement document" in regulation 2 of

the principal regulations shall be substituted by the following new

definition

" "procurement document" means any document produced

or referred to by the contracting entity to describe or determine

elements of the procurement or the procedure, including the

contract notice, the periodic indicative notice or the notices on

the existence of a qualification system where they are used as a

means of calling for competition, the technical specifications,

the descriptive document, proposed conditions of contract,

formats for the presentation of documents by candidates and

tenderers, information on generally applicable obligations and

any additional documents;".

Regulation 30 of the principal regulation shall be amended

as follows

(a)

in paragraph (a) of sub-regulation (1) thereof, for the

words "four hundred and eighteen thousand euro (€418,000)",

there shall be substituted the words "four hundred and forty-

three thousand euro (€443,000)"; and

(b) in paragraph (b) of sub-regulation (1) thereof, for

the words "four hundred and eighteen thousand euro

(€418,000)", there shall be substituted the words "four hundred

and forty three thousand euro (€443,000)".

Regulation 63 of the principal regulations shall be

amended as follows

(a)

the current provision shall be re-numbered as sub-

regulation (1) of the said regulation 63; and

(b) immediately after sub-regulation (1) thereof, as re-

numbered, there shall be added the following new sub-

regulations

"(2) When a call for competition is made by

means of a periodic indicative notice in respect of

restricted procedures and negotiated procedures with prior

call for competition, the notice shall meet all the following

requirements

(a) it shall refer specifically to the supplies,

works or services that will be the subject of the

contract to be awarded;

(b) it shall indicate that the contract will be

awarded by restricted or negotiated procedure

without further publication of a call for competition

and it shall invite interested economic operators to

express their interest;

(c) it shall contain, in addition to the

information set out in section I of Part A of

Schedule 8, the information set out in section 2 of

Part A of Schedule 8;

(d) it shall be sent for publication between

thirty-five days and twelve months prior to the date

on which the invitation to confirm interest is sent.

(3) Such notices shall not be published on a

buyer profile; however, the additional publication at

national level pursuant to the provisions of regulation 67,

if any, may be made on a buyer profile.

(4) The period covered by the periodic indicative

notice shall be a maximum of twelve months from the date

the notice is transmitted for publication; however, in the

case of contracts for social and other specific services, the

periodic indicative notice referred to in regulation

135(1)(a)(ii) may cover a period which is longer than

twelve months.".

Immediately after sub-regulation (7) of regulation 65 of Amends

the principal regulations, there shall be added the following new sub- regulation

the principal

regulation

regulations.

"(8) Where the call for competition for the contract

concerned has been made in the form of a periodic indicative

notice and the contracting entity has decided that it will not

award further contracts during the period covered by the

periodic indicative notice, the contract award notice shall

contain a specific indication to that effect.".

In sub-regulation (1) of regulation 71 of the principal

regulations, for the words "regularly referred to in their supply, works

or service contracts" there shall be substituted the words "regularly

referred to in their supply, works or service contracts or the technical

specifications which they intend to apply to contracts for which the

call for competition is a periodic indicative notice.".

Immediately after sub-regulation (5) of regulation 72 of

the principal regulations, there shall be added the following new sub-

regulation

"(6) Where the means of calling for competition is a

notice on the existence of a qualification system, such access

shall be offered as soon as possible and at the latest when the

invitation to tender or to negotiate is sent. The text of the notice

or of those invitations shall specify the internet address at which

the procurement documents are accessible.".

Immediately after sub-regulation (2) of regulation 73 of

the principal regulations, there shall be added the following new sub-

regulation

"(3) Where a periodic indicative notice is used as a call

for competition pursuant to regulation 89(2)(a), contracting

entities shall simultaneously and in writing invite the economic

operators which have expressed their interest to confirm their

continuing interest.".

Paragraph (a) of sub-regulation (5) of regulation 74 of the

principal regulations shall be substituted by the following

"(a) state so in the contract notice, in the invitation to

confirm interest, or, where the means of calling for competition

is a notice on the existence of a qualification system, in the

invitation to tender or to negotiate;".

Immediately after sub-regulation (2) of regulation 84 of

the principal regulations, there shall be added the following new sub-

regulation

"(3) When a call for competition is made by means of a

notice on the existence of a qualification system and for the

purpose of selecting participants in procurement procedures for

the specific contracts which are the subject of the call for

competition, contracting entities shall

(a) qualify economic operators in accordance with

the provisions of regulation 169;

(b) apply to such qualified economic operators

those provisions of sub-regulation (1) that are relevant to

restricted or negotiated procedures, to competitive

dialogues or to innovation partnerships.".

Regulation 89 of the principal regulations shall be Amends

regulation 89 of

amended as follows

the principal

regulations.

(a)

the current provision shall be re-numbered as sub-

regulation (1) of the said regulation 89; and

(b) immediately after sub-regulation (1) thereof, as re-

numbered, there shall be added the following new sub-

regulations

"(2) The call for competition may be made by one

of the following means

(a) a periodic indicative notice pursuant to

the provisions of regulation 63 where the contract

is awarded by restricted or negotiated procedure;

(b) a notice on the existence of a

qualification system pursuant to the provisions of

regulation 169 where the contract is awarded by

restricted or negotiated procedure or by a

competitive dialogue or an innovation partnership;

(c) by means of a contract notice pursuant

to the provisions of regulation 64.

(3) In the case referred to in sub-regulation

(2)(a), economic operators, having expressed their interest

following the publication of the periodic indicative notice,

shall subsequently be invited to confirm their interest in

writing by means of an invitation to confirm interest in

conformity with the provisions of regulation 73.".

Paragraphs (a) and (b) of sub-regulation (2) of regulation Amends

91 of the principal regulations shall be substituted by the following: regulation

the principal

regulations.

"(a) the periodic indicative notice included, in addition

to the information required by section I of Part A of Schedule 8,

all the information required by section II of Part A of Schedule

8, insofar as the latter information was available at the time the

periodic indicative notice was published;

(b)

the periodic indicative notice was sent for

publication between thirty-five days and twelve months before

the date on which the contract notice was sent.".

In regulation 99 of the principal regulations, immediately

after the words "from the publication of the procurement document"

there shall be added the words "or, where a periodic indicative notice

is used as a means of calling for competition, the invitation to confirm

interest was sent".

In regulation 116 of the principal regulations, immediately

after the words "or when the call for competition is published" there

shall be added the words "or, where a periodic indicative notice is

used as a means of calling for competition, the invitation to confirm

interest was sent and shall in any event not be less than fifteen days".

Immediately after sub-paragraph (ii) of paragraph (a) of

sub-regulation (1) of regulation 135 of the principal regulations, there

shall be added the following new sub-paragraph

"(iii) by means of a notice on the existence of a

qualification system, which shall be published continuously;

or".

In paragraph (a) of sub-regulation (3) of regulation 148 of

the principal regulations, immediately after the words "or when the

call for competition is published" there shall be added the words "or,

where a periodic indicative notice is used as a means of calling for

competition, the invitation to confirm interest is sent and shall in any

event not be less than fifteen days".

Regulation 158 of the principal regulations shall be

substituted by the following

"158. Contracting entities which decide to hold an

electronic auction shall state that fact in the contract notice, in

the invitation to confirm interest or, where a notice on the

existence of a qualification system is used as a means of calling

for competition, in the invitation to tender. The procurement

documents shall include at least the information set out in

Schedule 8.".

Regulation 168 of the principal regulations shall be

amended as follows

(a)

sub-regulation (1) thereof shall be substituted by the

following

"(1) Where the objective rules and criteria for the

exclusion and selection of economic operators requesting

qualification in a qualification system include

requirements relating to the economic and financial

capacity of the economic operator, or to its technical and

professional abilities, the economic operator may where

necessary rely on the capacity of other entities, whatever

the legal nature of the link between itself and those

entities. With regard to criteria relating to the educational

and professional qualifications of the service provider or

contractor or those of the undertaking’s managerial staff or

to the relevant professional experience, economic

operators may however only rely on the capacities of other

entities where the latter will perform the works or services

for which these capacities are required. Where an

economic operator wants to rely on the capacities of other

entities, it shall prove to the contracting entity that those

resources will be available to it throughout the period of

the validity of the qualification system, for example by

producing a commitment by those entities to that effect.";

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

"regulations 80 and 81" there shall be substituted the words

"regulation 81";

(c)

sub-regulation (5) thereof shall be re-numbered as

sub-regulation (7); and

(d) immediately after sub-regulation (4) thereof, there

shall be added the following new sub-regulations

"(5) Where the objective rules and criteria for the

exclusion and selection of candidates and tenderers in

open, restricted or negotiated procedures, in competitive

dialogues or in innovation partnerships include

requirements relating to the economic and financial

capacity of the economic operator, or to its technical and

professional abilities, the economic operator may where

necessary and for a particular contract rely on the capacity

of other entities, whatever the legal nature of the link

between itself and those entities. With regard to criteria

relating to the educational and professional qualifications

of the service provider or contractor or those of the

undertaking’s managerial staff or to the relevant

professional experience, economic operators may however

only rely on the capacities of other entities where the latter

will perform the works or services for which these

capacities are required. Where an economic operator wants

to rely on the capacities of other entities, it shall prove to

the contracting entity that the necessary resources shall be

available to it, for example by delivering a commitment by

those entities to that effect.

(6) Contracting entities shall verify, in

accordance with regulation 166, whether the other entities

on whose capacity the economic operator intends to rely

fulfil the relevant selection criteria or whether there are

grounds for exclusion or black-listing. The contracting

entity shall require that the economic operator replaces an

entity which does not meet a relevant selection criterion, or

in respect of which there are compulsory grounds for

exclusion to which the contracting entity has referred

Provided that where an economic operator relies on

the capacities of other entities with regard to criteria

relating to economic and financial standing, the

contracting entity may require that the economic operator

and those entities be jointly liable for the execution of the

contract

Provided further that under the same conditions, a

group of economic operators as referred to in regulations

80 and 81 may rely on the capacities of participants in the

group or of other entities.".

Regulation 169 of the principal regulations shall be

substituted by the following

" System of

169. (1) Contracting entities which so

qualification

wish, after obtaining the written prior approval

for economic

of the Director, may establish and operate a

operators.

system of qualification of economic operators.

(2) Contracting entities which, after

having obtained the prior written approval of the

Director, establish or operate a system of

qualification shall ensure that economic

operators are at all times able to request

qualification.

(3) The qualification system may involve

different qualification stages.

(4) Contracting entities shall establish

objective rules and criteria for the exclusion and

selection of economic operators requesting

qualification and objective criteria and rules for

the operation of the qualification system,

covering matters such as inscription in the

system, periodic updating of the qualifications, if

any, and the duration of the system.

(5) Where those criteria and rules include

technical specifications, the provisions of

regulations 76 to 78 shall apply. The criteria and

rules may be updated as required.

(6) The criteria and rules referred to in

sub-regulations (3) to (5) shall be made available

to economic operators on request. Those updated

criteria and rules shall be communicated to

interested economic operators.

(7) Where a contracting entity considers

that the qualification system of certain other

entities or bodies meets its requirements, it shall

communicate to interested economic operators

the names of such other entities or bodies.

(8) When a call for competition is made

by means of a notice on the existence of a

qualification system, specific contracts for the

works, supplies or services covered by the

qualification system shall be awarded by

restricted procedures or negotiated procedures,

in which all tenderers and participants are

selected among the candidates already qualified

in accordance with such a system.

(9) Any charges that are billed in

connection with requests for qualification or

with updating or conserving an already obtained

qualification pursuant to the system shall be

proportionate to the generated costs.

(10) Where contracting entities choose to

set up a qualification system in accordance with

this regulation, the system shall be the subject of

a notice as referred to in Schedule 20, indicating

the purpose of the qualification system and how

to have access to the rules concerning its

operation.

(11) Contracting entities shall indicate the

period of validity of the qualification system in

the notice on the existence of the system. They

shall notify the Publications Office of the

European Union of any change in period of

validity, using the following standard forms

(a)

where the period of validity is

changed without terminating the system,

the form for notices on the existence of

qualification systems;

(b) where the system is terminated,

a contract award notice referred to in

regulation 65.".

Schedule 5 to the principal regulations shall be amended as

follows

(a)

in paragraph (a) thereof, for the words "EUR

418,000", there shall be substituted the words "EUR 443,000";

and

(b) in paragraph (b) thereof, for the words "EUR

5,225,000", there shall be substituted the words "EUR

5,548,000".

Immediately after section I of Part A of Schedule 8 to the

principal regulations, there shall be added the following new section

"II. Additional information to be supplied where the

notice is used as a means of calling for competition or permits

the reduction of the time limits for the receipt of tenders

6. A reference to the fact that interested economic

operators shall advise the entity of their interest in the contract

or contracts.

7. E-mail or internet address at which the

specifications procurement 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 for the reasons set out in regulation 72(2) and (4), an

indication of how the procurement documents can be accessed.

8. Where appropriate, state whether the contract is

reserved for sheltered workshops or whether its performance is

reserved in the context of sheltered employment programmes.

9. Time limit for the receipt of applications for an

invitation to tender or to negotiate.

10. Nature and quantity of the products to be supplied or

general nature of the work or category of service and

description, stating if framework agreement(s) are envisaged,

including any options for further procurement and the estimated

time available for exercising those options as well as the

number of renewals, if any. In the case of recurring contracts,

also, an estimate of the timing of the subsequent calls for

competition. State whether purchase, lease, rental or hire-

purchase or any combination of those is involved.

11. NUTS code for the main location of works in case of

works or NUTS code for the main place of delivery or

performance in supplies and service; if the contract is divided

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

12. Time limits for delivery or completion or duration of

service contract and, as far as possible, for starting.

13. Address to which interested undertakings shall send

their expressions of interest in writing.

14. Time limit for receipt of expressions of interest.

15. Language or languages

authorised

for

the

presentation of candidatures or tenders.

16. Economic and technical conditions, and financial

and technical guarantees required of suppliers.

17. (a) Estimated date for initiating the procurement

procedures in respect of the contract or contracts (if known);

(b) Type of procurement procedure (restricted

procedures, whether or not involving a dynamic purchasing

system, or negotiated procedures).

18. Where appropriate, particular conditions to which

the performance of the contract is subject.

19. Where appropriate, indication whether

(a) electronic submission of tenders or requests

to participate will be required/accepted,

(b)

electronic ordering will be used,

(c)

electronic invoicing will be used,

(d)

electronic payment will be accepted.

20. Name and address of the body responsible for

appeal and, where appropriate, mediation procedures. Precise

information concerning time limits 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.

Where known, criteria referred to in regulation 170

to be used for award of the contract. Except where the most

economically advantageous tender is identified on the basis of

advantageous tender as well as their weighting or, where

appropriate, the order of importance of those criteria shall be

mentioned, where they do not appear in the specifications, or

will not be indicated in the invitation to confirm interest or in

the invitation tender or to negotiate.".

Immediately after Schedule 19 to the principal regulations

there shall be added the following new schedule

"Schedule 20

INFORMATION TO BE INCLUDED IN THE NOTICE ON

THE EXISTENCE OF A QUALIFICATION SYSTEM

(as referred to in regulations 89(2)(b) and 169(10))

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 entity

and, where different, of the service from which additional

information may be obtained.

2. Main activity exercised.

3. Where appropriate, state whether the contract is

reserved for sheltered workshops or whether its performance is

reserved in the context of sheltered employment programmes.

4. Purpose of the qualification system (description of

the products, services or works or categories thereof to be

procured through the system - CPV codes). NUTS code for the

main location of works in case of works or NUTS code for the

main place of delivery or performance in supplies and service.

5. Conditions to be fulfilled by the economic operators

in view of their qualification pursuant to the system and the

methods according to which each of those conditions will be

verified. Where the description of such conditions and

verification methods is voluminous and based on documents

available to interested economic operators, a summary of the

main conditions and methods and a reference to those

documents shall be sufficient.

6. Period of validity of the qualification system and the

formalities for its renewal.

7. Reference to the fact that the notice acts as the call

for competition.

8. Address

where

further

information

and

documentation concerning the qualification system can be

obtained (where different from the addresses mentioned under

paragraph 1).

9. Name and address of the body responsible for

appeal and, where appropriate, mediation procedures. Precise

information concerning time limits 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.

10. Where known, criteria referred to in regulation 170

to be used for award of the contract. Except where the most

economically advantageous tender is identified on the basis of

advantageous tender as well as their weighting or, where

appropriate, the order of importance of those criteria, shall be

mentioned where they do not appear in the specifications or will

not be indicated in the invitation to tender or to negotiate.

11. Where appropriate, an indication whether

(a) electronic submission of tenders or requests

to participate will be required/accepted,

(b)

electronic ordering will be used,

(c)

electronic invoicing will be used,

(d)

electronic payment will be accepted.

12. Any other relevant information.

€1.44