PROCUREMENT OF PROPERTY REGULATIONS

PROCUREMENT OF PROPERTY

SUBSIDIARY LEGISLATION 601.12

PROCUREMENT OF PROPERTY REGULATIONS

30th April, 2020

LEGAL NOTICE 163 of 2020.

The title of these regulations is the Procurement of

Property Regulations.

Interpretation and scope

For the purposes of these regulations -

"authorities responsible for the administration of government

land and properties" shall mean the Lands Authority as established

under article 5 of the Lands Authority Act and the Joint Office as

established under article 4 of the Ecclesiastical Entities (Properties)

Act;

"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;

"black listed person" means a black-listed person as defined

under the Public Procurement Regulations;

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

any person, including staff members of the contracting authority or of

a procurement service provider acting on behalf of the contracting

authority, who are involved in the conduct of the procurement

procedure or who 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 procurement procedure;

"contracting authorities" means the 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;

"Contracts Committees" means the General Contracts

Committee as defined under the Public Procurement Regulations;

"direct contracts" means contracts awarded without the need to

publish a prior call for competition;

"Director" means the Director of Contracts as established

under the Public Procurement Regulations;

"economic operator" means any natural or legal person or

public entity or group of such persons and, or entities, including any

temporary association of undertakings who submitted a bid under,

and regulated by, these regulations;

"Evaluation Committee" means boards or committees

appointed by contracting authorities with the purpose of evaluating

tenders received and for making recommendations thereon;

"government’s e-procurement platform" means the electronic

platform for procurement as established by the Director;

"Minister" means the Minister responsible for Finance;

"modification" means any change, variation or amendment to

the original terms of the contract including, but not limited to, the

introduction of new conditions and to the removal or replacement of

existing conditions;

"procurement document" means any document produced or

referred to by the contracting authority to describe or determine

elements of the procurement or the procedure, including the technical

specifications, the descriptive document, proposed conditions of

contract, formats for the presentation of documents by tenderers,

information on generally applicable obligations and any additional

documents including clarifications;

"procurement of property" means the acquisition by whatever

title, whether real or personal, of immovable property by a

contracting authority;

"Review Board" means the Public Contracts Review Board as

established under the Public Procurement Regulations;

"the Schedule" means Schedule 1 - List of Contracting

Authorities - annexed to the Public Procurement Regulations.

The scope of these regulations is to regulate the manner

in which government carries out the procurement of property.

These regulations shall not apply to the following;

(a)

the procurement of property which is regulated

by any other law;

PROCUREMENT OF PROPERTY

(b)

the procurement of property outside the territory

of Malta;

(c)

the procurement of property between contracting

authorities or bodies governed by public law;

(d)

the procurement of property by whatever title

that is declared to be secret or is accompanied by special

security measures in accordance with the laws, regulations or

administrative provisions in force in Malta, as long as the

essential interests concerned cannot be guaranteed by less

intrusive measures; and

(e)

the procurement of property authorized under a

government scheme published in the Gazette.

These regulations shall apply to the procurement of

property carried out after the date of entry into force of these

regulations.

(1)

Without prejudice to the applicability of the

other provisions of these regulations, the procurement process

regulated under these regulations

(a)

that has an estimated value which does not

exceed the threshold of five hundred thousand euro (€500,000)

has to be published, administered and determined by the

contracting authority on its own without the need to involve

the Director;

(b)

that has an estimated value of which exceeds the

threshold of five hundred thousand euro (€500,000)) shall be

published, administered and determined by the Director on

behalf of the contracting authority.

(2) The Minister shall, from time to time, by regulations

determine the thresholds applicable under these regulations.

The Office of the Director of Contracts

Regulations 10 and 11 of the Public Procurement

Regulations shall mutatis mutandis apply to these regulations.

(1)

Unless otherwise provided for in these

regulations, it shall be the duty of the Director to carry out the

following functions

(a)

to monitor procurement of property with the aim

of ensuring adherence to these regulations;

(b)

to establish and regulate the procedure to be

followed

during meetings of the General Contracts

Committee, the Departmental Contracts Committee and the

Evaluation Committee, and during the issue and publication of

calls for tenders, receipt of offers, opening of bids, evaluation

of tenders and award of contracts in accordance with the rules

herein set out;

(c)

to obtain information from all the contracting

authorities or bodies governed by public law on the award and

performance of contracts regulated by these regulations as he

may deem necessary;

(d)

to draw up and maintain a list of persons who

have been black-listed.

(2) Where the Director or his delegate identify, on their own

initiative or upon the receipt of information, specific violations or

systematic problems, they shall be empowered to report this matter to

the appropriate authority.

(3) 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 to

cancel the procurement procedure, or to terminate or rescind the

ensuing contract.

Regulation 13 of the Public Procurement Regulations

shall mutatis mutandis apply to these regulations.

(1)

The Director has the right to cancel the award of

a contract at any time during a call for tenders even after the

recommended bidder has been chosen and the time established to file

an appeal before the Public Contracts Review Board has lapsed, if it

is found that such a contract has been awarded in breach of these

regulations.

(2) The decision leading to the cancellation of a

procurement procedure has to be made in writing and must include

the findings and the reasoning that led to this decision.

(3) A copy of this decision must be notified to each bidder

who participated in that particular call, and the bidder shall have the

right to contest the decision by filing a complaint before the Review

Board.

(4) The procedure mentioned in regulation 276 of the Public

Procurement Regulations shall mutatis mutandis apply to this

regulation.

(5) There shall be an appeal to the Court of Appeal from the

decision of the Review Board.

The Contracting Authority

PROCUREMENT OF PROPERTY

(1)

It shall be the duty of all contracting authorities

(a)

to observe and abide by these regulations;

(b)

to draw up procurement documents and all

relevant supporting documentation as well as to publish and

administer, without the involvement of the Director, calls for

tenders, where the estimated value of such tenders is in

accordance with the threshold established under regulation

6(1)(a);

(c)

to forward the procurement document and all

relevant supporting documentation to the Director so that they

may be vetted, published and administered by the latter when

the estimated value of the procurement process is in

accordance with the threshold established under regulation

6(1)(b);

(d)

to publish all calls for tenders, through

government’s e-procurement platform, unless otherwise

provided for in these regulations;

(e)

to take appropriate measures to effectively

prevent, identify and remedy conflicts of interest arising in the

conduct of procurement procedures so as to avoid any

distortion of competition and to ensure equal treatment of all

bidders;

(f)

to indicate in their procurement documents that

the award of the contract is subject to the review procedure as

set out in these regulations and to include an extract of the

relevant part of the appeals process in the said documents for

the guidance of the bidders;

(g)

to administer and implement all contracts

awarded by them or on their behalf and to defend before a

board or tribunal any dispute that might arise in the execution

of the contract;

(h)

to effect all payments resulting from the

execution of the contract;

(i)

to forward immediately to the Director any

information which the latter may request.

(2) Contracts which result from tenders the estimated value

of which is in accordance with the threshold established under

regulation 6(1)(a) shall be signed by the head of the contracting

authority.

The Evaluation Committee and the evaluation report

(1)

The evaluation of a call for tenders shall be

carried out by an Evaluation Committee which shall be appointed as

follows

(a)

for tenders which have an estimated value which

is in accordance with the threshold established under

regulation 6(1)(a), the Evaluation Committee shall be

approved by the head of the contracting authority;

(b)

for tenders which have an estimated value which

is in accordance with the threshold established under

regulation 6(1)(b), the Evaluation Committee shall be

recommended by the head of the contracting authority and

approved by the Director.

(2) The Evaluation Committee shall evaluate the offers

submitted by the bidders in reply to the publication of a procurement

document and make recommendations through the evaluation report.

(3)

The evaluation report shall be communicated as follows

(a)

for tenders with an estimated value which is in

accordance with the threshold established under regulation

6(1)(a), the Evaluation Committee shall communicate the

report to the Departmental Contracts Committee which is

empowered to make definitive recommendations on the award

or cancellation of the procurement process;

(b)

for tenders with an estimated value which is in

accordance with the threshold established under regulation

6(1)(b), the Evaluation Committee shall communicate the

report to the Director who shall be empowered to make

definitive recommendations on the award or cancellation of

the procurement process.

Contracting authorities shall, for every tender, draw up a

written report which shall include at least the following

(a)

the name and address of the contracting

authority, the subject-matter and value of the call for tenders;

(b)

where applicable, the results of the qualitative

selection;

(c)

the names of the selected tenderer and the

reasons for his selection;

(d)

the names of the tenderers rejected or excluded

and the reasons for their rejection or exclusion;

(e)

where applicable, the reasons why the

contracting authority has decided not to award a contract.

Classification of Contracting Authorities and Joint Procurement

(1)

For the purposes of these regulations, the

Schedule lists the contracting authorities or bodies governed by

public law which are obliged to follow these regulations.

(2) A body governed by public law or a contracting

authority, which is not listed under the Schedule, shall have the same

obligations of an authority listed under the said Schedule.

(1)

After obtaining the prior written approval of the

Director and subject to the conditions the latter may impose, two or

more contracting authorities may jointly procure property in terms of

these regulations.

(2) The procurement procedure shall be administered by the

contracting authority or by the Director, as the case may be, in terms

of regulation 6 depending on the estimated value of the joint

procurement.

(3) Where the conduct of a procurement procedure in its

entirety is carried out jointly in the name and on behalf of all the

contracting authorities concerned, they shall be jointly responsible

for fulfilling their obligations pursuant to these regulations.

(4) Where the conduct of a procurement procedure is not in

its entirety carried out in the name and on behalf of the contracting

authorities concerned, they shall be jointly responsible only for those

parts carried out jointly. Each contracting authority shall have sole

responsibility for fulfilling its obligations pursuant to these

regulations.

The Contract Value

(1)

The calculation of the estimated value of a

procurement procedure shall be based on the total amount payable,

excluding any tax, as estimated by the contracting authority,

including any form of option and any renewals of the contracts as

explicitly set out in the procurement documents.

(2) The estimated value referred to in sub-regulation (1)

shall be valid at the moment at which the call for competition is sent,

or, in cases where a call for competition is not foreseen, at the

moment at which the contracting authority commences the

procurement procedure, for instance, where appropriate, by

contacting bidders in relation to the procurement.

(3) Where a procurement process for the procurement of

property may result in contracts being awarded in the form of

separate lots, in order to determine the estimated value the

contracting authority shall take into account the cumulative value of

all lots when applying the provisions of regulation 6.

Contracts into Lots

Contracting authorities may decide to award a contract

in the form of separate lots and may determine the size and subject

matter of such lots, indicating in the procurement document whether

the offer can be submitted for one, for several or for all of the lots.

Contracting authorities may, even where tenders may be

submitted for several or all lots, limit the number of lots that may be

awarded to one tenderer, provided that the maximum number of lots

per tenderer is stated in the procurement document.

General Principles

(1)

The procurement document shall be written in

clear and unambiguous terms so as to enable all interested parties to

understand properly the terms and conditions of the process.

(2) If requested in good time, the contracting authorities

shall supply to all tenderers taking part in the procurement procedure

additional information relating to the specifications and any

supporting documents not later than four days before the time limit

fixed for the receipt of tenders.

(3) The authority administering the procurement process

may publish clarification notes to explain certain matters, to give

additional information, to remove or amend certain inconsistencies or

errors and to fill in missing information contained in the procurement

document.

(4) When published in the clarification notes, the additional

information and the supporting document shall automatically form an

integral part of the procurement document.

(1)

Contracting authorities shall treat bidders

equally and shall act in a transparent and proportionate manner.

(2) The tenderer must be selected in a transparent manner

and according to a prescribed procedure in these regulations and in

the procurement documents.

(1)

Subject to the obligations established under

these regulations and, or any other law, a contracting authority or the

Director shall not disclose information forwarded to it by bidders

which information they have designated as confidential.

(2) Without prejudice to the other provisions of 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 and any information related to

the bidders’ capacity to qualify for a particular procurement

procedure;

(b)

the premises procured under these regulations;

(c)

the price for which the contract is awarded; and

(d)

information which is already available to the

public.

(3) Contracting authorities may impose on bidders

requirements aimed at protecting the confidential nature of

information which the contracting authorities make available

throughout the procurement procedure.

(1)

The authority responsible for the tendering

process shall, unless otherwise approved by the Director, by

electronic means offer unrestricted and full direct access free of

charge to the procurement documents from the date of publication of

the procurement documents on the government’s e-procurement

platform.

(2) Where the Director approves that the publication be

carried out without using government’s e-procurement platform, the

authority responsible for the tendering process is still obliged to offer

unrestricted and full direct access free of charge to the procurement

documents from the date after the publication in the Gazette.

(1)

The technical specifications and use of the

property to be used shall be set out in the procurement documents

which shall lay down the characteristics required in the said property.

(2) Technical specifications shall afford equal access of

bidders to the procurement procedure and shall not have the effect of

creating unjustified obstacles.

(3) The technical specifications shall as far as possible be

formulated in terms of performance or functional requirements,

including environmental characteristics or location, provided that the

parameters are sufficiently precise to allow tenderers to determine the

subject-matter of the contract and to allow contracting authorities to

award the contract.

(4) Where a label, standard or brand is quoted, the

contracting authority must ensure that the reference to such

standards, labels or brands is accompanied by the words ‘or

equivalent’.

The Tenderer

A tenderer may either be a natural or a legal person or a

public entity or group of such persons and, or entities provided that

such person is allowed at law to dispose of the property which is the

subject of the tender.

Groups of economic operators, including temporary

associations, may participate in procurement procedures.

The Selected Offer

(1)

A procurement procedure published under these

regulations shall be awarded on the basis of the award criteria set out

by the authority responsible for the tendering process provided that

all the following conditions are fulfilled

(a)

the offer complies with the

minimum

requirements set in the procurement document;

(b)

the tenderer is not excluded from participating in

the award procedure in accordance with Part VI of the Public

Procurement Regulations; and

(c)

the tenderer is not black listed in terms of Part

VI of the Public Procurement Regulations.

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

(1)(a) shall inter alia include conditions and characteristics

(particularly technical, physical, functional and legal) that any tender

should meet or possess.

(1)

Without prejudice to Part VI of the Public

Procurement Regulations, the authority responsible for the tendering

process must ensure that a bidder must ab initio be eligible to qualify

for a tender and must consequently be in possession of all the

requirements stipulated in the procurement documents by the closing

date for the submission of the same.

(2) Where information or documentation to be submitted by

bidders is or appears to be incomplete or erroneous or where specific

documents are missing, contracting authorities may, in terms of the

procurement document, request the bidder concerned to submit,

supplement, clarify or complete the relevant information or

documentation within an appropriate time limit

Provided that such requests shall be made in full

compliance with the principles of equal treatment and transparency.

(3) The financial bid cannot be changed with the exception

of the correction of evident arithmetical errors as may be allowed in

the procurement document.

Where a tenderer either directly or indirectly has advised

the contracting authority or the authority responsible for the

tendering process, on the future procurement of property, such

tenderer shall be precluded from participating in the ensuing

procurement procedure.

Part II

Boards, Committees and Tribunals

General Contracts Committee

Regulations 64 to 72 of the Public Procurement

Regulations shall mutatis mutandis apply to these regulations.

Departmental Contracts Committee

There shall be a Departmental Contracts Committee

which shall be responsible, unless otherwise regulated in these

regulations, to make final recommendations for the award of

procurement processes where the estimated value of such process is

in accordance with the threshold established under regulation 6(1)(a).

The Departmental Contracts Committee shall be

composed of three members, as follows

(a)

a chairman, who shall be the Head of the

Department responsible for Corporate Services, or his

representative;

(b)

one member appointed by the Permanent

Secretary of the Ministry concerned; and

(c)

one member representing the Director of

Contracts, which member may also be a member of the

General Contracts Committee.

The Departmental Contracts Committee shall be assisted

by a Secretary who shall be appointed by the Permanent Secretary of

the Ministry concerned.

The Departmental Contracts Committee shall send a

copy of its recommendation to the Director.

Public Contracts Review Board

Regulations 80 to 94 of the Public Procurement

Regulations shall mutatis mutandis apply to these regulations.

Part III

Publication, Tendering Procedure and Time Limits

(1)

Before publishing a procurement procedure,

contracting authorities must consult with the authorities responsible

for the administration of government land and properties.

(2) If such authorities are of the opinion that they have in

their portfolio a property which at least fulfils the requirements of the

contracting authority, the latter shall be obliged to make use of such

property instead of issuing a call for tenders.

(3) If the authorities responsible for the administration of

government land and properties are of the opinion that in their

portfolio there is no such property, they shall declare so and the

contracting authority shall be authorised to carry on with such

procurement in line with what is established under these regulations.

(1)

Before publishing a procurement procedure,

contracting authorities may conduct market consultations with a view

to preparing the procurement and informing bidders of their

procurement plans and requirements.

(2) Contracting authorities may, for instance, seek or accept

advice from independent experts or authorities or from market

participants. That advice may be used in the planning and conduct of

the procurement procedure, provided that such advice does not have

the effect of distorting competition and does not result in a violation

of the principle of transparency and equal treatment.

(1)

The authority responsible for the tendering

process shall have the freedom to organise the procedure leading to

the choice of a successful bidder provided such choice complies with

these regulations.

(2) Such procedure must be clearly identified in the

procurement document.

(3) The design of the procurement process shall ensure that

information is not provided in a discriminatory manner which may

give some tenderers an advantage over others.

(4) Unless otherwise approved by the Director the tendering

process for the procurement of property shall be published using

government’s e-procurement platform.

(5) Where the Director approves that the tendering process

is not published through the government’s e-procurement platform,

such tendering process is to be advertised at least on the Gazette.

The authority responsible for the tendering process shall

provide for appropriate recording of the stages of the procedure using

the means it deems appropriate.

(1)

If the tender document provides for it, the

contracting authority may hold negotiations with tenderers.

(2)

The tender document must identify which clauses and

requirements are subject to negotiations. In determining these areas

the authority administering the procurement process shall ensure that

the subject-matter of the procurement process, the award criteria and

the minimum requirements shall not be changed during the course of

the negotiations.

(1)

When fixing the time limits for the receipt of

tender offers, the authority responsible for the tendering process shall

take into account in particular the complexity of the requirements

established in the procurement documents without prejudice to the

minimum time limits set out in this regulation.

(2) The tendering process may be either in a single stage or

in successive stages.

(3) The minimum time limit for the receipt of tender offers

in the case of a single stage process or for the initial submission in the

case of a tender with successive stages, shall be thirty days from the

date on which the procurement document was published on the

government’s e-procurement platform or from the next day on which

an advert has been published on the Gazette, as the case may be.

(4) When the estimated value of a procurement procedure is

in accordance with the threshold established under regulation 6(1)(a),

the contracting authority must obtain the prior written approval of the

Permanent Secretary responsible for it, or any person delegated by

him in writing, to reduce the time limits established under sub-

regulation (3) by fifteen days

Provided that the Permanent Secretary or his delegate

may, in granting such an approval, impose any condition he may

deem fit.

(5) When the estimated value of a tendering process is in

accordance with the threshold established under regulation 6(1)(b), a

contracting authority must obtain the prior written approval of the

Director to reduce the time limit established under sub-regulation (3)

by fifteen days

Provided that the Director may, in granting such an

approval, impose any condition he may deem fit.

Notwithstanding anything included under these

regulations, a contracting authority may procure property through a

direct contract upon obtaining the prior written approval as provided

hereunder

(a)

when the estimated value of a tendering process

is in accordance with the threshold established under

regulation 6(1)(a), a contracting authority must obtain prior

written approval of the Minister who may delegate his

authority in writing to the Permanent Secretary or any other

senior official in his Ministry;

(b)

when the estimated value of a tendering process

is in accordance with the threshold established under

regulation 6(1)(b), a contracting authority must obtain prior

written approval of the Director.

Part IV

Exclusion and Black Listing of Economic Operators

Part VI of the Public Procurement Regulations shall,

mutatis mutandis, apply to these regulations.

Part V

Eligibility, Choice of participants and award of contracts

Eligibility

(1)

The authority responsible for the tendering

process shall in the procurement document request bidders to declare

that they do not fall under any grounds established under regulation

42. (2) Contracting authorities may at any stage of the

procurement process require the certificates, statements and other

means of proof as evidence for the absence of grounds for exclusion

and for the fulfilment of the selection criteria and the award criteria.

(3) Contracting authorities may also at any stage of the

procurement process require proof of title over the proposed property

subject to the procurement and capacity to dispose such property.

Choice of Participants

Contracting authorities may impose selection criteria in

order to ensure that bidders are suitable for the execution of the

contract.

As to suitability, contracting authorities may inter alia

impose requirements ensuring that the property being procured is

covered by the licences and permits necessary for the intended use of

the property.

The authority responsible for the tendering process shall

indicate the required conditions of participation which may be

expressed as minimum levels, together with the appropriate means of

proof, in the procurement documents.

Award

(1)

Tenders shall be awarded on the basis of

objective criteria which comply with the principles set out in these

regulations and which ensure that tenders are assessed in conditions

of effective competition so as to identify an overall economic

advantage for the contracting authority.

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

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

on the contracting authority.

(3) The award criteria are to be published in the

procurement document.

(4) The award criteria may include, inter alia,

environmental, social or innovation-related criteria and location of

the property.

(5) The award criteria shall be accompanied by

requirements, which allow the information provided by the tenderers

to be effectively verified.

(6) The contracting authority shall verify whether tenders

properly meet the award criteria and shall detail its reasoning in the

evaluation report.

(7) Once established, the award criteria cannot be altered

under any circumstance.

(1)

The authority administering the procurement

process shall as soon as possible inform each tenderer of decisions

taken concerning the award of a call issued under these regulations.

The issued information shall include the name of the successful

tenderer, the grounds for any decision to reject his tender and the

grounds for any decision not to award a contract for which there has

been a public call.

(2) Further to the provisions of sub-regulation (1), on

request from the party concerned, the authority responsible for the

administration of the procurement process shall as quickly as

possible, and in any case within fifteen days from receipt of a written

request, inform any tenderers that have submitted a tender of the

characteristics and relative advantages of the tender selected.

(3) The authority responsible for the administration of the

procurement process 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 bidders, whether public or private,

or might prejudice fair competition between such operators.

Part VI

Rules on Performance of Contracts

Application of contractual obligations

Contracting authorities shall ensure that the obligations

established in a call for tenders and the ensuing contract are adhered

to.

Modifications

(1)

Modifications to the contracts are to be limited

as far as practicable; however contracting authorities may, subject to

the following conditions, carry out modifications to the contracts.

(2) In the case of call for tenders with an estimated value

which is in accordance with the threshold established under

regulation 6(1)(a), the contracting authority may carry out

modifications to the contract provided that it obtains the written prior

approval of its Permanent Secretary or his delegate.

(3) In the case of call for tenders with an estimated value

which falls under regulation 6(1)(b), the contracting authority may

carry out modifications to the contract provided that it obtains the

written prior approval of the Director.

In its request for approval the contracting authority shall

provide the following information

(a)

the reasons which brought about the need for the

modification;

(b)

the effect on the total cost of the tender and any

effect on the recurrent expenditure that will ensue;

(c)

the written consent of all the parties to the

contract to carry out the modification.

(1)

In granting or refusing a request for a

modification, the Permanent Secretary or the Director, as the case

may be, shall assess whether the request is justified and whether the

modification is cost-effective.

(2) The Permanent Secretary or the Director, as the case

may be, is to keep a full record of the process of modification

requests, including the respective approval therefor.

(3) The decision of the Permanent Secretary or the Director,

as the case may be, relating to the refusal of a modification shall be

final and shall not be contested by the contracting authority in a court

or tribunal.

(4) In granting or refusing a request for a modification, the

Permanent Secretary or the Director, as the case may be, may issue

any instruction they may deem fit to the contracting authority who

shall be obliged to implement such instructions.

When a modification is carried out without seeking the

prior written approval of the Director or of the respective Permanent

Secretary, as the case may be, the Director or the Permanent

Secretary cannot be requested to give a retroactive approval of the

modification and thus shall abstain from taking any cognisance of it.

The responsibility of this unapproved modification shall vest in the

head of that contracting authority in accordance with the Fiscal

Responsibility Act.

Any modification carried out against the express refusal

of the Permanent Secretary or the Director, as the case may be, shall

be deemed to be founded on an unlawful consideration and the other

parties in the contract shall have no right for compensation with

respect to that modification unless they show that they were unaware

of the refusal of the Permanent Secretary or the Director.

Following a request by the Permanent Secretary or the

Director, as the case may be, the State Advocate may, on behalf of the

government, institute civil proceedings in a court of law for the

restoration of payments received by an owner in bad faith in relation

to modifications which have been prohibited in terms of these

regulations. Such action shall not be subject to any prescriptive

period.

An owner shall desist from acceding to a modification

which requires the prior written approval of the Director or the

Permanent Secretary, as the case may be, unless the contracting

authority provides him with a written confirmation of the said

approval. If the owner agrees to the modification nonetheless, he

shall be deemed to have acted in bad faith and thus he shall not be

entitled to any compensation with respect to that modification, so

long as such modification was not approved in terms of these

regulations or when the contracting authority proceeded with the

modification without seeking the prior written approval of the

Director or the respective Permanent Secretary, as the case may be.

Any payments received by the owner in this regard may be restored

in the same manner as provided in regulation 55.

Termination or Rescission of a Contract

(1)

The Director has the right to issue a decision

terminating or rescinding any contract or agreement that could have

been reached or signed with an owner if it transpires that the award of

that contract has been made in breach of these regulations.

(2) The decision leading to the termination or rescission of

the contract in accordance with this regulation shall be made in

writing and must include the findings and the reasons.

(3) A copy of the decision must be delivered to the owner,

who has the right to contest it by filing a complaint before the Review

Board as provided for in regulation 60.

(4) The termination or rescission of the contract will remain

suspended as long as the time limit for the submission of the

complaint before the Review Board or the Court of Appeal lapses and

during the duration of these same proceedings.

(5) The owner shall have no right to be compensated for the

actual loss or loss of profits, where the decision to terminate the

contract is confirmed, with the exception that the owner shall have

the right to receive compensation he deserves for the occupation of

the property until the decision of termination is confirmed.

(6) Should the decision of rescission of the contract be

confirmed, then the effects of rescission as provided for under the

Civil Code shall apply.

Part VII

Appeals

Remedies before closing date of a call for competition

Regulations 262 to 269 of the Public Procurement

Regulations shall mutatis mutandis apply to these regulations.

Appeals from Decisions taken after the Closing Date

for the Submissions of an Offer

Regulations 270 to 276 of the Public Procurement

Regulations shall mutatis mutandis apply to these regulations.

Appeal from a Decision terminating or rescinding a Contract.

Regulation 283 of the Public Procurement Regulations

shall mutatis mutandis apply to these regulations.

Court of Appeal

Regulations 284 to 290 of the Public Procurement

Regulations shall mutatis mutandis apply to these regulations.