PUBLIC PROCUREMENT REGULATIONS

PUBLIC PROCUREMENT

SUBSIDIARY LEGISLATION 601.03

PUBLIC PROCUREMENT REGULATIONS

28th October, 2016

LEGAL NOTICE 352 of 2016, as amended by Legal Notices 155 of 2017, 233 of 2017, 26 of

2018, 176 of 2018, 263 of 2018 and 195 and 301 of 2019 and 196, 413 and 446 of 2020, 56 of

2021 26 and 360 of 2022, 212 and 227 of 2023 and 112 of 2024; Act XXVIII of 2018, XXI of

2020 and X of 2023 and XVII of 2024 and Legal Notices 361 of 2024, 47 and 110 of 2025.

(1) The title of these regulations is the Public Procurement

Regulations.

(2) These regulations transpose the provisions of Directive

2014/24/EU of the European Parliament and of the Council of 26

February, 2014, on public procurement and repealing Directive

2004/18/EC.

Part I

General Provisions

Interpretation and Scope

For the purposes of these regulations

"ancillary purchasing activities" means activities consisting in

the provision of support to purchasing activities, in particular in the

following forms

(a) technical

infrastructure

enabling

contracting

authorities to award public contracts or to conclude

framework agreements for works, supplies or services;

(b) advice on the conduct or design of public procurement

procedures;

(c) preparation and management of procurement

procedures on behalf and for the account of the

contracting authority concerned;

"black listed person" means any person, whether legal or natural,

with whom a contracting authority and any body governed by

public law shall be prohibited from carrying out any procurement

whether directly or as a sub-contractor or as a member of a

consortium and, or joint venture;

"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 authorities or bodies; 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 restricted procedure,

in a competitive procedure with negotiation, in a negotiated

procedure without prior publication, in a competitive dialogue or in

an innovation partnership;

"candidate concerned" means a candidate who has not yet

received information from a contracting authority about the

rejection of his application before the notification of the contract

award decision to the tenderer concerned;

"central government authorities" means the contracting

authorities listed in Schedule 6 and, in so far as corrections or

amendments have been made at national level, their successor

entities;

"centralised purchasing activities" means activities conducted on

a permanent basis, in one of the following forms

(a) the acquisition of supplies and, or services intended

for contracting authorities;

(b) the award of public contracts or the conclusion of

framework agreements for works, supplies or services

intended for contracting authorities;

"central p urch asi ng body " m eans a co ntracting aut hority

providing centralised purchasing activities and, possibly, ancillary

purchasing activities;

"Commission" means the Commission of the European Union;

"common technical specification" means a technical

specification in the field of ICT laid down in accordance with

Articles 13 and 14 of Regulation (EU) 1025/2012;

"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 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;

"conformity assessment body" shall be a body that performs

conformity assessment activities including calibration, testing,

c e r t i f i c a t i o n a n d i ns p e c t i o n a c c r e d i te d i n ac c o r d a n c e w it h

Regulation (EC) No 765/2008 of the European Parliament and of

the Council of 9 July 2008 setting out the requirements for

accreditation and market surveillance relating to the marketing of

products;

"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;

"contract award notice" means an award notice to be published in

the Official Journal of the European Union;

"contract notice" means a notice to be published in the Official

Journal of the European Union;

"Contracts Committees" means the General Contracts Committee

and, or the Special Contracts Committee;

"CPV" means the Common Procurement Vocabulary as adopted

by Regulation (EC) No. 2195/2002 as amended from time to time;

"departmental tender" means tenders issued by contracting

authorities with an estimated value which falls under the threshold

established under regulation 9(1)(a);

"design contests" means those procedures which enable the

contracting authority to acquire, mainly in the fields of town and

country planning, architecture and engineering or data processing,

a plan or design selected by a jury after being put out to

competition with or without the award of prizes;

"direct contracts" means contracts awarded without recourse to a

prior call for competition;

"Director" means the Director of Contracts who heads the

Department of Contracts;

"Director of Employment and Industrial Relations" shall have the

same meaning as specified in the Employment and Industrial

Relations Act;

"Director Sectoral Procurement" means the Director responsible for

the administration and management of the Sectoral Procurement

Directorate;

"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 and shall cover equally the

concepts of contractor, supplier and service provider;

"electronic means" refers to 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;

"European Technical Assessment" means the documented

assessment of the performance of a construction product, in

relation to its essential characteristics, in accordance with the

respective European Assessment Document, as defined in point 12

of Article 2 of Regulation (EU) No 305/2011 of the European

Parliament and of the Council;

"Evaluation Committee" means boards or committees appointed

by contracting authorities with the purpose of evaluating tenders

received and for making recommendations thereon;

"framework agreement" means an agreement between one or

more contracting authorities and one or more economic operators,

the purpose of which is to establish the terms governing contracts

to be awarded during a given period, in particular with regard to

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

platform for procurement as established by the Director;

"ineffectiveness" means a contract awarded illegally or when the

procurement procedure was not followed correctly;

"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 for smart, sustainable and inclusive growth;

"irregular tenders" means tenders which do not comply with the

procurement documents, which were received late, where there is

evidence of collusion or corruption, or which have been found by

the contracting authority to be abnormally low;

"label" means any document, certificate or attestation confirming

that the works, products, services, processes or procedures in

question meet certain requirements;

"label requirements" means the requirements to be met by the

works, products, services, processes or procedures in question in

order to obtain the label concerned;

"life cycle" means all consecutive and, or interlinked stages,

including research and development to be carried out, production,

trading and its conditions, transport, use and maintenance,

throughout the existence of the product or the works or the

provision of the service, from raw material acquisition or

generation of resources to disposal, clearance and end of service or

utilisation;

"Member State" means a member state of the European Union;

"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;

"negotiated procedures" means those procedures whereby

contracting authorities consult the economic operators of their

choice and negotiate the terms of a contract with one or more of

these;

"notice" means a notice published in the Gazette;

"prior information notices" means a notice published in the

Official Journal according to what is specified under Part I;

"procurement" means acquisition by means of a public contract

o f w o r k s , s u p p l i e s o r se r v i c e s b y o n e o r m o r e c o n t r a c t i n g

authorities from economic operators chosen by those contracting

authorities, whether or not the supplies, works, or services are

intended for a public purpose;

"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

contract notice, the prior information notice where it is 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 including clarifications;

"procurement service provider "means a public or private body

which offers ancillary purchasing activities on the market;

"public contracts" means contracts for pecuniary interest

concluded in writing between one or more economic operators and

one or more contracting authorities and having as their object the

execution of works, the supply of products or the provision of

services;

"public service contracts" means public contracts having as their

object the provision of services other than those referred to in the

definition of public works contracts;

"public supply contracts" means public contracts having as their

object the purchase, lease, rental or hire-purchase, with or without

an option to buy, of products, which may include, as an incidental

matter, siting and installation operations;

"public works contracts" means public contracts having as their

object one of the following

(a) the execution, or both the design and execution, of

works related to one of the activities within the

meaning Schedule 15;

(b) the execution, or both the design and execution, of a

work;

(c) the realisation, by whatever means, of a work

corresponding to the requirements specified by the

contracting authority exercising a decisive influence

on the type or design of the work;

"regional authorities" includes authorities listed non-

exhaustively in Nomenclature of Territorial Units for Statistics

(NUTS) 1 and 2, as referred to in Regulation (EC) No 1059/2003 of

the European Parliament and of the Council, while "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;

"restricted procedures" means those procedures in which any

economic operator may request to participate and whereby only

those economic operators invited by the contracting authorities

may submit a tender;

"Review Board" means the Public Contracts Review Board;

"Sectoral Procurement Directorate" means the directorate

responsible for the administration, evaluation and recommendation on

behalf of contracting authorities listed under Schedule 16 of calls for

tenders published under an open or restricted procedure where the

estimated value of such calls exceeds ten thousand euro (€10,000) but

it does not exceed the threshold of seven hundred and fifty thousand

euro (€750,000);

"SME" has the same meaning as that given under Commission

Recommendation 2003/361/EC;

"standard" means a technical specification, adopted by a

recognised standardisation body, for repeated or continuous

application, with which compliance is not compulsory, and which is

one of the following

(a) "international standard" means a standard adopted by

an international standardisation organisation and made

available to the general public;

(b) "European standard" means a standard adopted by a

European standardisation organisation and made

available to the general public;

(c) "national standard" means a standard adopted by a

national standardisation organisation and made

available to the general public;

"technical reference" means any deliverable produced by

European standardisation bodies, other than European standards,

according to procedures adapted to the development of market

needs;

"technical specification" means either

(a) in the case of public works contracts the totality of the

technical prescriptions contained in particular in the

procurement documents, defining the characteristics

required of a material, product or supply, so that it

fulfils the use for which it is intended by the

contracting authority; those characteristics include

levels of environmental and climate performance,

design for all requirements (including accessibility for

disabled persons) and conformity assessment,

performance, safety or dimensions, including the

procedures concerning quality assurance, terminology,

symbols, testing and test methods, packaging, marking

and labelling, user instructions and production

processes and methods at any stage of the life cycle of

the works; those characteristics also include rules

relating to design and costing, the test, inspection and

acceptance of conditions for works and methods or

techniques of construction and all other technical

conditions which the contracting authority is in a

position to prescribe, under general or specific

regulations, in relation to the finished works and to the

materials or parts which they involve; or

(b) in the case of public supply or service contracts a

specification in a document defining the required

characteristics of a product or a service, such as

quality levels, environmental and climate performance

levels, design for all requirements (including

accessibility for disabled persons) and conformity

assessment, performance, use of the product, safety or

dimensions, including requirements relevant to the

product as regards the name under which the product is

sold, terminology, symbols, testing and test methods,

packaging, marking and labelling, user instructions,

production processes and methods at any stage of the

life cycle of the supply or service and conformity

assessment procedures;

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

the Functioning of the European Union;

"tenderer" means an economic operator that has submitted a

tender;

"tenderers concerned" means tenderers who have not yet been

definitely excluded. An exclusion is definitive if it has been

notified to the tenderers concerned and has either been considered

lawful by the Review Board or can no longer be subject to review

before the Court of Appeal;

"unacceptable tenders" means tenders submitted by tenderers

that do not have the required qualifications, and tenders whose

documented prior to the launching of the procurement procedure;

"VAT" means value added tax under the Value Added Tax Act;

"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 transmitted and stored by

electronic means.

The scope of these regulations is to regulate all the

procurement carried out by the Government of Malta.

Applicability

(1) These regulations shall regulate all the procurement

procedures that are initiated after their entry into force.

(2) The application of these regulations is subject to Article

346 of the TFEU.

Any procurement procedure which has been issued prior to

the coming into force of these regulations shall continue to be

regulated by the laws which were in force before the coming into

force of these regulations, including any review on any decision

thereon.

(1) These regulations shall also apply to works and service

contracts which are subsidised directly by contracting authorities

by more than 50% where these contracts include one of the

following activities

(a) civil engineering activities as listed in Schedule 15;

(b) building work for hospitals, facilities intended for

sports, recreation and leisure, school and university

buildings and buildings used for administrative

purposes.

(2) The contracting authorities providing the subsidies referred

to in sub-regulation (1) shall ensure compliance with these

regulations where they do not themselves award the subsidised

contract or where they award that contract for and on behalf of

other entities.

(1)

These regulations shall not apply to the following

(a) public contracts and design contests which, under the

Public Procurement of Entities operating in the Water,

Energy, Transport and Postal Services Sectors

Regulations, 2016, are awarded or organised by

contracting authorities exercising one or more of the

activities referred to in regulations 8 to 14 of the said

Regulations and are awarded for the pursuit of those

activities;

(b) public contracts excluded from the scope of the Public

Procurement of Entities operating in the Water,

Energy, Transport and Postal Services Sectors

Regulations, under regulations 18, 23 and 34 thereof;

(c) public contracts awarded by a contracting authority

which provides postal services within the meaning of

paragraph (b) of regulation 13(2) of the Public

Procurement of Entities operating in the Water,

Energy, Transport and Postal Services Sectors

Regulations for the pursuit of the following activities

(i)

added value services linked to and provided

entirely by electronic means including the

secure transmission of coded documents by

electronic means, address management services

and transmission of registered electronic mail;

(ii) financial services which are covered by CPV

codes 66100000-1 to 66720000-3 and by point

(d) of Article 21 of Directive 2014/25/EU and

including in particular postal money orders and

postal giro transfers;

(iii) philatelic services; or

(iv) logistics services (services combining physical

delivery and, or warehousing with other non-

postal functions);

(d) public contracts and design contests 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 service;

(e) public contracts and design contests which the

contracting authority is obliged to award or organise in

accordance with procurement 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 Treaties,

between a Member State and one or more third

countries or subdivisions thereof and covering

PUBLIC PROCUREMENT

works, supplies or services intended for the joint

implementation or exploitation of a project by

their signatories;

(ii) an international organisation

Provided that before making use of the exclusion

identified in sub-paragraph (i), a contracting authority

shall communicate all legal instruments referred

therein to the Commission;

(f)

public contracts and design contests which the

contracting authority awards or organises in

accordance with procurement rules provided by an

international organisation or international financing

institution, where the public contracts and design

contests concerned are fully financed by that

organisation or institution. In the case of public

contracts and design contests co-financed for the most

part by an international organisation or international

financing institution the parties shall agree on

applicable procurement procedures;

(g) public service contracts for the acquisition or rental,

by whatever financial means, of land, existing

buildings or other immovable property or concerning

rights thereon;

(h) public service contracts 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

contracts for broadcasting time or programme

provision that are awarded to audiovisual or radio

media service providers;

(i)

arbitration and conciliation services;

(j)

legal representation of a client by a lawyer within the

meaning of Article 1 of Council Directive 77/249/EEC

of 22 March 1977 to facilitate the effective exercise by

lawyers of freedom to provide services in

(i)

an arbitration or conciliation held in a Member

State, a third country or before an international

arbitration or conciliation instance;

(ii) judicial proceedings before the courts, tribunals

or public authorities of a Member State or a third

country or before international courts, tribunals

or institutions;

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

proceedings referred to in paragraph (j) of this sub-

regulation 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 of

22 March 1977 to facilitate the effective exercise by

lawyers of freedom to provide services;

(l)

document certification and authentication services

which must be provided by notaries;

(m) legal services provided by trustees or appointed

guardians or other legal services the providers of

which are designated by a court or tribunal in the

Member State concerned or are designated by law to

carry out specific tasks under the supervision of such

tribunals or courts;

(n) other legal services which are connected, even

occasionally, with the exercise of official authority;

(o) 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 of

21 April 2004 on markets in financial instruments

amending central bank services and operations

conducted with the European Financial Stability

Facility and the European Stability Mechanism;

(p) loans, whether or not in connection with the issue,

sale, purchase or transfer of securities or other

financial instruments;

(q) employment contracts;

(r) 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;

(s) public passenger transport services by rail or metro;

(t)

political campaign services covered by CPV codes

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

awarded by a political party in the context of an

election campaign;

(u) public service contracts awarded by a contracting

authority to another contracting authority or to an

association of contracting authorities on the basis of an

exclusive right which they enjoy pursuant to a law,

regulation or published administrative provision which

is compatible with the TFEU;

(v) public service contracts for research and development

services other than those public service contracts for

research and development services which fall under

the CPV codes 73000000-2 to 73120000-9, 73300000-

5, 73420000-2 and 73430000-5 and whose benefits

accrue exclusively to the contracting authority for its

use in the conduct of its own affairs, on condition that

the service provided is wholly remunerated by the

contracting authority;

PUBLIC PROCUREMENT

(w) public contracts falling within the scope of Public

Procurement of Contracting Authorities or Entities in

the fields of Defence and Security Regulations and

those contracts which are excluded pursuant to

regulations 9(1), 12 and 13 of Public Procurement of

Contracting Authorities or Entities in the fields of

Defence and Security Regulation;

(x) public contracts and design contests not otherwise

exempted under paragraph (w) 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 makes available in a contract

award procedure as provided for in these regulations;

(y) public contracts and design contests not otherwise

exempted under paragraph (w) to the extent that 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;

(z) the procurement and performance of a public contract

or design contest that are declared to be secret or are

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, such as those referred to in

paragraphs (x) and (y);

(aa) public contracts and design contests involving defence

or security aspects which the contracting authority is

obliged to award or organise in accordance with

procurement procedures different from those laid

down in these regulations established by any of the

following

(i)

an international agreement or arrangement,

concluded in conformity with the Treaties,

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 agreement or arrangement

relating to the stationing of troops and

concerning the undertakings of a Member State

or a third country;

(iii) an international organisation

Provided that all agreements or arrangements referred

to in sub-paragraph (i) shall be communicated to the

Commission, which may consult the Advisory

Committee on Public Procurement;

(bb) public contracts and design contests involving defence

or security aspects which the contracting authority

awards in accordance with procurement rules provided

by an international organisation or international

financing institution, where the public contracts and

design contests concerned are fully financed by this

organisation or institution. In the case of public

contracts and design contests co-financed for the most

part by an international organisation or international

financing institution the parties shall agree on

applicable procurement procedures;

(cc) the organisation of the social security system;

(dd) all public procurement carried out in terms of the

Emergency Procurement Regulations.

(2)

For the purposes of this regulation

"audiovisual media services" shall have the same meaning as

pursuant to point (a) of Article 1(1) of Directive 2010/13/EU of the

European Parliament and of the Council of 10 March 2010 on the

coordination of certain provisions laid down by law, regulation or

administrative action in Member States concerning the provision of

audiovisual media services;

"electronic communications service" shall have the meaning

given to this term in Directive 2002/21/EC of the European

Parliament and of the Council of 7 March 2002 on a common

regulatory framework for electronic communications networks and

services;

"media service providers" shall have the same meaning as

pursuant to point (d) of Article 1(1) of Directive 2010/13/EU of the

European Parliament and of the Council of 10 March 2010 on the

coordination of certain provisions laid down by law, regulation or

administrative action in Member States concerning the provision of

audiovisual media services;

"programme" shall have the same meaning as pursuant to point

(b) of Article 1(1) of Directive 2010/13/EU of the European

Parliament and of the Council of 10 March 2010 on the

coordination of certain provisions laid down by law, regulation or

administrative action in Member States concerning the provision of

audiovisual media services and shall also include radio

programmes and radio programme materials;

"programme material" shall have the same meaning of the term

"programme";

"public communications network" shall have the meaning given

to this term in Directive 2002/21/EC of the European Parliament

and of the Council of 7 March 2002 on a common regulatory

framework for electronic communications networks and services.

(3) Contracts and design contests involving defence or security

aspects which are awarded or organised pursuant to international

rules shall be regulated by sub-regulation (1)(aa) and (bb).

(1) Subject to the provisions of regulation 111(3), a public

contract, having an estimated value which falls under regulation

9(1)(b), awarded by a contracting authority to a legal person

governed by private or public law, shall fall outside the scope of

these regulations when all of the following conditions are fulfilled

(a) the contracting authority exercises over the legal

person concerned a control which is similar to that

which it exercises over its own departments;

(b) more than 80% 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 by other legal persons controlled by that contracting

authority; 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.

Provided that a contracting authority shall be deemed to

exercise over a legal person a control similar to that which it

e x e r c i s e s o v e r i t s o w n d e p a rt m e n t s w i t h i n t h e m e a n i n g o f

paragraph (a) where it exercises a decisive influence over both

strategic objectives and significant decisions of the controlled legal

person. Such control may also be exercised by another legal person,

which is itself controlled in the same way by the contracting

authority.

(2) The provisions of sub-regulation (1) also apply where a

controlled legal person which is a contracting authority awards a

contract to its controlling contracting authority, or to another legal

person controlled by the same contracting authority, provided that

there is no direct private capital participation in the legal person

being awarded the public contract 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.

(3) A contracting authority, which does not exercise control

over a legal person governed by private or public law control

within the meaning of sub-regulation (1), may nevertheless award a

public contract to that legal person without applying these

regulations where all of the following conditions are fulfilled

(a) the contracting authority exercises jointly with other

contracting authorities a control over that legal person

which is similar to that which they exercise over their

own departments;

(b) more than 80% of the activities of that legal person are

carried out in the performance of tasks entrusted to it

by the controlling contracting authorities or by other

legal persons controlled by the same contracting

authorities; 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.

(4) For the purposes of sub-regulation (3)(a), contracting

authorities 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. Individual

representatives may represent several or all of the

participating contracting authorities;

(b) those contracting authorities 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.

(5) A contract concluded exclusively between two or more

contracting authorities 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 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 perform on the

open market less than 20% of the activities concerned

by the cooperation.

(6) For the determination of the percentage of activities

referred to in sub-regulations (1)(b), (3)(b) and (5)(c), the average

total turnover, or an appropriate alternative activity-based measure

such as costs incurred by the relevant legal person or contracting

authority with respect to services, supplies and works for the three

years preceding the contract award shall be taken into

consideration.

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

person or contracting authority 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.

(1) Without prejudice to the applicability of the other

provisions of these regulations, the procurement process of public

contracts

(a) the estimated value of which is less than one hundred

forty three thousand euro (€143,000), shall be issued,

administered and determined by the contracting

authorities on their own without the need to involve

the Director;

(b) the estimated value of which equals or exceeds the

threshold of one hundred forty three thousand euro

(€143,000) shall be issued, administered and

determined by the Director on behalf of the

contracting authority;

(c) that have been published by the Sectorial Procurement

Directorate in the name of the contracting authority listed

under Schedule 16, where the estimated value of such

procurement exceeds ten thousand euro (€10,000) but

does not exceed seven hundred and fifty thousand euro

(€750,000) have to be published, administered and

determined by the Sectorial Procurement Directorate on

its own without the need to involve the Director.

(2) Public contracts required by those contracting authorities

listed in Schedule 3 shall be issued, administered and determined

by these contracting authorities on their own without the need to

involve the Director, subject to the provisions set out in these

regulations including but not limited to the right of appeal.

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

determine the thresholds applicable under these regulations. Such

thresholds shall be equal to, and categorised in the same fashion, as

the thresholds established pursuant to the relevant European Union

Directives as published from time to time in the Official Journal of

the European Union.

The Office of the Director of Contracts

There shall be a Director of Contracts who shall be

responsible for the management of the Department of Contracts and

generally for the regulation and administration of the procurement

procedures as laid down in these regulations.

In the exercise of his functions, the Director and his

immediate family shall not be held personally liable for any act or

omission done in good faith. For the purpose of this regulation,

''immediate family'' shall mean the spouse and children of the

Director.

(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 activities with the aim of

ensuring adherence to these regulations and to ensure

that the results of these monitoring activities are made

available to the public through appropriate means of

information;

(b) to establish and regulate the procedure to be followed

during meetings of the General Contracts Committee,

the Special 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 on the award and performance of contracts

as he may deem necessary in order to enable him to

ensure conformity with these regulations;

(d) to provide information and guidance on the

interpretation and application of these regulations, to

assist contracting authorities and economic operators,

in particular SMEs, in correctly applying these

regulations;

(e) to provide support to contracting authorities with

regard to planning and carrying out procurement

procedures;

(f)

to grant access to public supply contracts or public

service contracts with a value which equals or exceeds

one million euro (€1,000,000) and public works

contracts with a value which equals or exceeds ten

million euro (€10,000,000) in terms of the applicable

national rules on access to documents and data

protection

Provided that the Director shall be obliged to keep

these contracts at least for the duration of the same;

(g) to afford effective co-operation to other member states

leading to the exchange of information which the

Director has gathered in the execution of his duties as

long as such information is exchanged in observance

with Maltese legislation regulating such exchange of

information;

(h) to make available to other Member States, upon

request, any information related to the evidence and

documents submitted in accordance with regulations

53(4) and (5), 54 and 55;

(i)

to draw up and maintain a list of persons who have

been blacklisted; and

(j)

to make available to a Member State, when such is

requested, any information mentioned in Parts VI and

VII.

(2) Where the Director or his delegate identify, by 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) In order to ensure compliance with these regulations, the

Dire ctor m ay i ssue a dministrat iv e or d e r s es t a b l is h i ng h ow

procurement procedures, or public contracts, are to be issued,

administered, determined and implemented, as the case may be. Inter

alia such administrative orders may include instructions to the

Sectoral Procurement Directorate and the obligation on contracting

authorities to submit annual procurement plans.

In relation to a procurement procedure carried out by the

Director on behalf of a contracting authority with an estimated

value which falls under regulation 9(1)(b) it shall also be the

function of the Director

(a) to establish and approve the general conditions of the

procurement documents;

(b) to authorise deviations from standard terms and

conditions in accordance with the regulations set out

herein and which may be included in the procurement

documents;

(c) to consider an extension or the cancellation of a

procurement procedure;

(d) to order that a procurement period of any call for

offers referred to in these regulations be extended if he

considers such an extension justified by the

circumstances of the case;

(e) to vet and approve, with or without modification,

procurement documents before the same are issued and

published;

(f)

to approve, where required under these regulations,

modifications which exceed the amount established in

regulation 246(3);

(g) to approve requests made by the contracting

authorities for the extension of contracts if he

considers that circumstances so warrant in the public

interest and specific provision for such extensions is

made in the procurement document;

(h) to identify and implement appropriate means to enable

him to monitor the proper execution of contracts;

(i)

to make regulations to award contracts in the name and

on behalf of contracting authorities listed in Schedule

2, including the case of an association of authorities of

which such contracting authority is a member;

(j)

to establish the procedure affecting the award of

contracts governed by procedures deviating from these

regulations as long as these procedures shall be

published by a notice in the Gazette;

(k) to publish in the Gazette a notice of all awards of

contracts including variations outside the limit of the

tender conditions, within six months of their award;

(l)

to award tenders and sign contracts in the name and on

behalf of contracting authorities as provided for in

these regulations;

(m) to take appropriate measures to ensure that in the

performance of public contracts economic operators

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 13; and

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

later than six months after the end of each financial

year, on the performance of the General Contracts

Committee, and of the Special Contracts Committee

during the financial year being reported upon, which

report shall, in particular, provide details regarding the

results of the monitoring activities

Provided that, following the transmission of the report

to the Minister, the Director shall ensure that the report

is made public.

By 18 April 2017 and every three years thereafter the

Director shall forward to the Commission a statistical report for

procurement as set out in the EU Directive 2014/24.

(1) The Director has the right to cancel the award of a

contract at any time during a call for tenders or quotations even

after the recommended bidder has been decreed and the time

establish to file and appeal before the Public Contracts Review

Board has lapsed, if it is found that such a contract has been

awarded either in breach of these regulations or the award has been

made in such a way as to discriminate between economic operators.

(2)

(a) The Director may decide to cancel any procurement

procedure even if an evaluation process has not been

concluded by the end of the validity period of the

submitted bids.

(b) If the Director decides to cancel the tender he shall

consult the General Contracts Committee or the

Special Contracts Committee as the case may be for its

opinion.

(c) Should the General Contracts Committee or the

Special Contracts Committee, as the case may be, not

agree with the recommendation of the Director, the

decision of the Director may be referred to the

Minister for his approval.

(d) In the case of call for tenders administered by the

Sectoral Procurement Directorate, the Director Sectoral

Procurement, shall have the right to exercise the same

rights of the Director, as established under this sub-

regulation, with the exception that instead of consulting

with the General Contracts Committee or the Special

Contracts Committee he shall consult with the

Departmental Contracts Committee responsible for the

contracting authority on whose behalf the Sectoral

Procurement Directorate is administering the call.

(e) If the Departmental Contracts Committee does not

agree with the recommendations of the Sectoral

Procurement Directorate, the decision of the latter can

be referred to the Minister responsible for that

Departmental Contracts Committee so that he can give

a final decision.

(3) 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.

(4) A copy of this decision must be notified to each economic

operator who participated in that particular call, who will have the

right to contest it by filing a complaint before the Review Board.

The same procedure mentioned in regulation 276 mutatis mutadis

applies also for this procedure.

(5) The decision of the review board can be appealed before the

Court of Appeal as provided in these regulations.

The Contracting Authority

(1) In so far as this is not inconsistent with the duties

established under sub-regulation (2) and regulation 79, it is the

duty of all contracting authorities

(a) to observe and abide to these regulations;

(b) to administer their own procurement when the

estimated values of such a procurement falls under the

threshold established in regulation 9(1)(a)

Provided that for entities listed under Schedule 3 this

obligation shall extend also to their procurement

which meets or exceeds the threshold established

under regulation 9(1)(b);

(c) to draw up procurement documents and all relevant

supporting documentation

Provided that when a contracting authority listed under

Schedule 2 needs to publish a procurement process

with an estimated value which falls under the

threshold established under regulation 9(1)(b) the

same contracting authority shall forward the

procurement document and all relevant supporting

documentation to the Director so that they may be

vetted, published and administered by the latter;

(d) to ensure that any references to nomenclatures in the

context of public procurement shall be made using the

Common Procurement Vocabulary;

(e) to publish all calls for tenders and quotations, through

government’s

e-procurement

platform,

unless

otherwise provided for in these regulations;

(f)

to monitor the implementation of the procurement

process;

(g) 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 economic operators;

(h) to indicate in their procurement documents that the

award of the contract is subject to the review

procedure as set forth in these regulations and to

include an extract of the relevant part of the appeals

process in the said documents for the guidance of

economic operators;

(i)

to administer and implement all contracts awarded

after the procurement and to defend in front of a board

or tribunal any dispute that might arise in the

execution of the contract;

(j)

to effect all payments resulting from the execution of

the contract;

(k) to take appropriate measures to ensure that during the

execution of a contract, economic operators comply

with the 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 13;

(l)

to forward a copy of the contracts identified in

regulation 12(1)(f) to the Director when the latter so

requests; and

(m) to institute and to defend any judicial or arbitral

proceedings in relation to any contract signed by them

or on their behalf.

(2)

(a) The contracting authorities listed under Schedule 16

have the duty to prepare the procurement documents

and all relevant supporting documentation and forward

these to the Sectoral Procurement Directorate when the

call is going to be published under the open procedure

a n d t he e s ti m a t e d va lu e o f t h is c a l l ex c e e d s t e n

thousand euro (€10,000) but does not exceed seven

hundred and fifty thousand euro (€750,000).

When the estimated value but does not exceed seven

hundred and fifty thousand euro (€750,000) these

documents have to be forwarded to the Director so that

he carries out his functions according to regulations 12

and 13.

(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).

(1) When an Evaluation Committee is appointed by a

contracting authority listed in Schedule 2, the Evaluation

Committee shall evaluate the offers submitted by the economic

operator and make recommendations through the evaluation report

and communicate the report as follows

(a) if the estimated value of the tender falls under the

threshold established under regulation 9(1)(a) the

individual report shall be addressed to the

Departmental Contracts Committee and shall be drawn

in terms of regulation 113;

(b) if the estimated value of the tender falls under the

threshold established under regulation 9(1)(b) the

individual report shall be addressed to the Director and

shall be drawn in terms of regulation 241.

(2) When an Evaluation Committee is appointed by a

contracting authority listed in Schedule 3, the Evaluation

Committee shall draw up an evaluation report and communicate

their report to the contracting authority.

(3) When the Evaluation Committee is appointed by the

Sectoral Procurement Directorate it has to prepare the evaluation

report and communicate the said report to the mentioned Unit.

Where a contacting authority or body governed by public

law is not listed under any schedule it shall have the same

obligations of an authority listed under Schedule 16.

Contracting authorities providing the subsidies referred to

in regulation 6 shall ensure compliance with these regulations even

where they do not themselves award the subsidised contract or

where they award that contract for and on behalf of other entities.

(1) For tenders with an estimated value which falls within

the threshold established in regulation 9(1)(b) a contracting

authority can impose or remit penalties only after obtaining the

permission of the Director.

(2) When a contracting authority listed under Schedule 16 is to

remit or impose a penalty in respect to a contract with an estimated

value which but does not exceed seven hundred and fifty thousand

euro (€750,000) it has to obtain the permission of the Permanent

Secretary responsible for it instead of that of the Director.

(3) Where a dispute on a penalty is brought before a court or

tribunal, the Director or the Permanent Secretary cannot be sued

even though he consented to the imposition of the penalty, however

for the integrity of the judgment it is sufficient that the dispute is

addressed against the contracting authority.

Centralised Purchasing Bodies and Joint Procurement

(1) Contracting Authorities listed in Schedule 4 are

authorised to act also as a central purchasing body.

(2) It shall be the function of central purchasing bodies to

periodically notify Heads of Departments of the prices and

conditions applicable for, and the procedure to be followed in, the

procurement of such equipment, stores, works or services.

(1) A contracting authority can acquire supplies and, or

services intended for contracting authorities, from a central

purchasing body.

(2) Contracting authorities can acquire works, supplies and

services by using contracts awarded by a central purchasing body,

by using dynamic purchasing systems operated by a central

purchasing body or, to the extent set out in regulation 170, by using

a framework agreement concluded by a central purchasing body

offering the centralised purchasing activity referred to in paragraph

(b) of the definition "centralised purchasing activities" under

regulation 2. Where a dynamic purchasing system which is

operated by a central purchasing body may be used by other

contracting authorities, this shall be mentioned in the call for

competition setting up that dynamic purchasing system.

(1) When a contracting authority carries out its

procurement under regulation 22 they will be deemed to have

fulfilled their obligations under these regulations.

(2) A contracting authority also fulfils its obligations pursuant

to these regulations where it acquires works, supplies or services

(a) by using contracts awarded by the central purchasing

body;

(b) by using dynamic purchasing systems operated by the

central purchasing body, or to the extent set out in sub-

regulation (5);

(c) by using a framework agreement concluded by the

central purchasing body offering the centralised

purchasing activity as defined in paragraph (b) of the

definition "centralised purchasing activities";

(3) Notwithstanding the provisions of sub-regulation (2), the

contracting authority concerned shall be responsible for fulfilling

the obligations pursuant to these regulations in respect of the parts

it conducts itself, such as

(a) awarding a contract under a dynamic purchasing

system, which is operated by a central purchasing

body;

(b) conducting a reopening of competition under a

framework agreement that has been concluded by a

central purchasing body;

(c) pursuant to paragraphs (a) or (b) of regulation 173(1)

determining which of the economic operators, party to

the framework agreement, shall perform a given task

under a framework agreement that has been concluded

by a central purchasing body.

(4) All procurement procedures conducted by a central

purchasing body shall be performed using electronic means of

communication, in accordance with the requirements set out in

regulation 48.

(5) Contracting authorities may, without applying the

procedures provided for in these regulations, award a public service

contract for the provision of centralised purchasing activities to a

central purchasing body.

(6) The public service contracts identified under sub-regulation

(5) m ay also i nclu de th e prov isi on of an cil lary p urchasi ng

activities.

(1) After seeking the approval of the Director and subject

to the conditions the latter may impose, two or more contracting

authorities may agree to perform certain specific procurements

jointly.

(2) Where the estimated value of the joint procurement falls

under the threshold established under regulation 9(1)(b), and unless

the Director agrees otherwise, the procurement procedure shall be

administered by the Director.

(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 or

Directive 2014/24/EU of the European Parliament and of the

Council of 26 February 2014 on public procurement as the case

may be. This applies also in cases where one contracting authority

manages the procedure, acting on its own behalf and on the behalf

of the other contracting authorities concerned.

(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 or Directive 2014/24/EU of the European Parliament

and of the Council of 26 February 2014 on public procurement as

the case may be in respect of the parts it conducts in its own name

and on its own behalf.

(1) A contracting authority may, with the approval of the

Director and subject to the conditions the latter may impose,

participate in procurement procedures involving contracting

authorities from different Member States.

(2) Where the estimated value of the joint procurement falls

under the threshold established under regulation 9(1)(b) the

application of this regulation shall be subject to what is established

under regulation 8.

(3) A contracting authority may make use of centralised

purchasing activities offered by central purchasing bodies located

in another Member State

Provided that contracting authorities shall not use the

means provided in this regulation for the purpose of avoiding the

application of mandatory public law provisions in conformity with

Union law to which they are subject.

(4) The provision of centralised purchasing activities by a

central purchasing body located in another Member State shall be

conducted in accordance with the national provisions of the

Member State where the central purchasing body is located.

(5) The national provisions of the Member State where the

central purchasing body is located shall also apply to the following

(a) the award of a contract under a dynamic purchasing

system;

(b) the conduct of a reopening of competition under a

framework agreement;

(c) the determination pursuant to paragraphs (a) or (b) of

regulation 173(2) of which of the economic operators,

party to the framework agreement, shall perform a

given task.

(6) Several contracting authorities from different Member

States may jointly award a public contract, conclude a framework

agreement or operate a dynamic purchasing system.

(7) Several contracting authorities from different Member

States may also, to the extent set out in regulation 170, award

contracts based on the framework agreement or on the dynamic

purchasing system.

(8) Unless the necessary elements have been regulated by an

international agreement concluded between the Member States

concerned, the participating contracting authorities shall conclude

an agreement that determines

(a) the responsibilities of the parties and the relevant

applicable national provisions;

(b) the internal organisation of the procurement

procedure, including the management of the

procedure, the distribution of the works, supplies or

services to be procured, and the conclusion of

contracts.

(9) A participating contracting authority fulfils its obligations

pursuant to these regulations when it purchases works, supplies or

services from a contracting authority which is responsible for the

procurement procedure.

(10) When determining responsibilities and the applicable

national law as referred to in sub-regulation (8)(a) the participating

contracting authorities may allocate specific responsibilities among

them and determine the applicable provisions of their respective

national laws.

(11) The allocation of responsibilities and the applicable

national law shall be referred to in the procurement documents for

jointly awarded public contracts.

(12) Where several contracting authorities from different

Member States have set up a joint entity, including European

Groupings of territorial cooperation under Regulation (EC) No

1082/2006 of the European Parliament and of the Council of 5 July

2006 on a European grouping of territorial cooperation or other

entities established under Union law, the participating contracting

authorities shall, by a decision of the competent body of the joint

entity, agree on the applicable national procurement rules of one of

the following Member States

(a) the national provisions of the Member State where the

joint entity has its registered office;

(b) the national provisions of the Member State where the

joint entity is carrying out its activities.

(13) The agreement referred to in sub-regulation (12) may either

apply for an undetermined period, when fixed in the constitutive

act of the joint entity, or may be limited to a certain period of time,

certain types of contracts or to one or more individual contract

awards.

(14) For the purposes of this Part, contracting authorities listed

under Schedule 3 do not require the prior approval of the Director

but the written consent by the head of that same contracting

authority shall suffice.

Mixed Procurement

(1) Contracts which have as their subject two or more

types of procurement, whether works, services or supplies, all of

which are covered by these regulations, shall be awarded in

accordance with the provisions applicable to the type of

procurement that characterises the main subject of the contract in

question.

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

matter different types of procurement, all of which are covered by

these regulations, consisting partly of services within the meaning

of regulation 162 and partly of other services or of mixed contracts

consisting partly of services and partly of supplies, the main

subject shall be determined in accordance with which of the

estimated values of the respective services or supplies is the

highest.

(3) In cases of mixed contracts which have as their subject-

matter procurement covered by these regulations and procurement

covered by other legal regimes and where the different parts of a

given contract are objectively separable the following shall apply

(a) contracting authorities may choose to award separate

contracts for the separate parts or to award a single

contract. Where contracting authorities 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;

(b) where contracting authorities choose to award a single

contract, these regulations shall, unless otherwise

provided in regulation 27, 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;

(c) in the case of mixed contracts containing elements of

supply, works and service contracts and of

concessions, the mixed contract shall be awarded in

accordance with these regulations, provided that the

estimated value of the part of the contract which

constitutes a contract covered by these regulations

calculated in accordance with regulations 28, 29, 30,

31 and 32, is equal to or greater than the relevant

threshold set out in Schedule 5.

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

both procurement covered by these regulations and procurement for

the pursuit of an activity which is subject to the Public Procurement

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

Services Sectors Regul ations, th e applicable rules shal l be

determined by regulations 5 and 6 of the Public Procurement of

Entities operating in the Water, Energy, Transport and Postal

Services Sectors Regulations, and this notwithstanding the

provisions of sub-regulation (3) of this regulation.

(5) 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.

(1) This regulation shall apply to cases of mixed contracts

which have, as their subject matter, procurement covered by these

regulations as well as procurement covered by Article 346 of the

TFEU or the Public Procurement of Contracting Authorities or

Entities in the fields of Defence and Security Regulations.

(2) Where the different parts of a given public contract are

objectively separable, contracting authorities may choose to award

separate contracts for the separate parts or to award a single

contract.

(3) Where contracting authorities choose to award separate

contracts for separate parts, the decision of 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.

(4) Where contracting authorities 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, 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 the Public

Procurement of Contracting Authorities or Entities in

the fields of Defence and Security Regulations, the

contract may be awarded in accordance with those

regulations, provided that the award of a single

contract is justified for objective reasons

Provided that this paragraph shall be without prejudice

to the thresholds and exclusions provided for in the

Public Procurement of Contracting Authorities or

Entities in the fields of Defence and Security

Regulations.

(5) 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) The provisions of sub-regulation (4)(a) shall apply to

mixed contracts to which both paragraphs (a) and (b) of sub-

regulation (4) could otherwise apply.

(7) 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 it may be awarded in accordance with the

Public Procurement of Contracting Authorities or Entities in the

fields of Defence and Security Regulations.

The Contract Value

(1) The calculation of the estimated value of a

procurement procedure shall be based on the total amount payable,

net of VAT, 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) Where the contracting authority provides for prizes or

payments to candidates or tenderers it shall take them into account

when calculating the estimated value of the procurement.

(3) Where a contracting authority is comprised of separate

operational units, account shall be taken of the total estimated

value for all the individual operational units.

(4) Notwithstanding the provisions of sub-regulations (1) and

(2), where a separate operational unit is independently responsible

for its procurement or certain categories thereof, the values may be

estimated at the level of the unit in question.

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

value of a procurement procedure shall not be made with the

intention of excluding it from the scope of these regulations. A

procurement procedure shall not be subdivided with the effect of

preventing it from falling within the scope of these regulations,

unless justified by objective reasons.

(6) That estimated value 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 economic operators in relation to

the procurement.

With regard to framework agreements and dynamic

purchasing systems, the value to be taken into consideration shall

be the maximum estimated value net of VAT of all the contracts

envisaged for the total term of the framework agreement or the

dynamic purchasing system.

In the case of innovation partnerships, the value to be taken

into consideration shall be the maximum estimated value net of

VAT of the research and development activities to take place during

all stages of the envisaged partnership as well as of the supplies,

services or works to be developed and procured at the end of the

envisaged partnership.

(1) With regard to public works contracts, the calculation

of the estimated value shall take account of both the cost of the

works and the total estimated value of the supplies and services that

are made available to the contractor by the contracting authority

provided that they are necessary for executing the works.

(2) Where a proposed work or a proposed provision of services

may result in contracts being awarded in the form of separate lots,

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

(3) In the case where the aggregate value of the lots established

in sub-regulation (2) is equal to or exceeds the threshold laid down

in Schedule 5, these regulations shall apply to the awarding of each

lot.

(4) Where a proposal for the acquisition of similar supplies

may result in contracts being awarded in the form of separate lots,

account shall be taken of the total estimated value of all such lots

when applying points (b) and (c) of Schedule 5.

(5) Where the aggregate value of the lots established in sub-

regulation (4) is equal to or exceeds the threshold laid down in

Schedule 5, these regulations shall apply to the awarding of each

lot.

(6) Notwithstanding the provisions of sub-regulations (2), (3),

(4) and (5), contracting authorities may award contracts for

individual lots without applying the procedures provided for under

these regulations, provided that the estimated value net of VAT of

the lot concerned is less than eighty thousand euro (€80,000) for

supplies or services or one million euro (€1,000,000) for works.

However, the aggregate value of the lots thus awarded without

applying these regulations shall not exceed 20% of the aggregate

value of all the lots into which the proposed work, the proposed

acquisition of similar supplies or the proposed provision of services

has been divided.

(1) In the case of public supply or service contracts which

are regular in nature or which are intended to be renewed within a

PUBLIC PROCUREMENT

given period, the calculation of the estimated contract value shall

be based on the following

(a) either the total actual value of the successive contracts

of the same type awarded during the preceding twelve

months or financial year adjusted, where possible, to

take account of the changes in quantity or value which

would occur in the course of the twelve months

following the initial contract; or

(b) the total estimated value of the successive contracts

awarded during the twelve months following the first

delivery, or during the financial year where that is

longer than twelve months.

(2) With regard to public supply contracts relating to the

leasing, hire, rental or hire purchase of products, the value to be

taken as a basis for calculating the estimated contract value shall be

as follows

(a) in the case of fixed-term public contracts, where that

term is less than or equal to twelve months, the total

estimated value for the term of the contract or, where

the term of the contract is greater than twelve months,

the total value including the estimated residual value;

(b) in the case of public contracts without a fixed term or

the term of which cannot be defined, the monthly

value multiplied by 48.

(3) With regard to public service contracts, the basis for

calculating the estimated contract value shall, where appropriate,

be the following

(a) insurance services: the premium payable and other

forms of remuneration;

(b) banking and other financial services: the fees,

commissions payable, interest and other forms of

remuneration;

(c) design contracts: fees, commissions payable and other

forms of remuneration.

(4) With regard to public service contracts which do not

indicate a total price, the basis for calculating the estimated

contract value shall be the following

(a) in the case of fixed-term contracts, where that term is

less than or equal to forty-eight months: the total value

for their full term;

(b) in the case of contracts without a fixed term or with a

term greater than forty-eight months: the monthly

value multiplied by 48.

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.

Where a tender has an estimated value which falls under

regulation 9(1)(b), contracting authorities shall provide an

indication of the main reasons for their decision not to subdivide

into lots, which shall be included in the procurement documents or

the individual report referred to in regulation 113.

Contracting authorities shall indicate, in the contract notice

or in the invitation to confirm interest, whether tenders may 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 contract notice or in the invitation

to confirm interest. Contracting authorities shall indicate in the

procurement documents the objective and non-discriminatory

criteria or rules they intend to apply for determining which lots will

be awarded where the application of the award criteria would result

in one tenderer being awarded more lots than the maximum

number.

Where one or more lots may be awarded to the same

tenderer, contracting authorities may award contracts combining

several or all lots where they have specified in the contract notice

or in the invitation to confirm interest that they reserve the

possibility of doing so and indicate the lots or groups of lots that

may be combined.

Principles Underlying the Procurement Process

(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 six days before the time limit

fixed for the receipt of tenders.

(3) In the event of an accelerated procedure as referred to in

regulation 116(3) and regulation 122, the period established under

this regulation shall be four days.

(4) The contracting authority or the central government

authority may issue 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.

(5) When issued in the clarification notes, the additional

information and the supporting document shall form integral part of

the procurement document.

(1) Contracting authorities shall treat economic operators

equally and without discrimination 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.

(3) The design of the procurement shall not be made with the

intention of excluding it from the scope of these regulations or of

artificially narrowing competition. Competition shall be considered

to be artificially narrowed where the design of the procurement is

made with the intention of unduly favouring or disadvantaging

certain economic operators.

(4) In so far as they are covered by Annexes 1, 2, 4 and 5 and

the General Notes to the European Union’s Appendix I to the GPA

and by the other international agreements by which the Union is

bound, contracting authorities shall accord to the works, supplies,

services and economic operators of the signatories to those

agreements treatment no less favourable than the treatment

accorded to the works, supplies, services and economic operators

of the Union.

(1) Subject to the obligations established under these

regulations and, or any other law obliging the Director, the

contracting authority and the Ministerial Procurement Unit to

disclose information, a contracting authority, the Director or the

Sectoral Procurement Directorate 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 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;

(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 made available

in public.

(3) Contracting authorities may impose on economic operators

requirements aimed at protecting the confidential nature of

information which the contracting authorities make available

throughout the procurement procedure.

Publication

The authority responsible for the tendering process may

make known its intentions of planned procurements through the

publication of a prior information notice. These notices shall

contain the information set out in Schedule 9 part B section I. They

shall be published either by the Publications Office of the European

Union or by the contracting authorities on their buyer profiles in

accordance with paragraph 2(b) of Schedule 11. Where the prior

information notice is published by the authority responsible for the

tendering process on its buyer profile, it shall send a notice of the

publication on their buyer profile to the Publications Office of the

European Union in accordance with Schedule 11. These notices

shall contain the information set out in Schedule 9 part A.

(1) Contract notices shall be used as a means of calling for

competition in respect of all procedures, without prejudice to the

provisions of regulation 150.

(2) Contract notices shall contain the information set out in

Schedule 9 part C and shall be published in accordance with

regulation 44.

(1) Not later than thirty days after the conclusion of a

contract or of a framework agreement, following the decision to

award or conclude it, the authority responsible for the tendering

process shall send a contract award notice on the results of the

procurement procedure.

(2) The notice shall contain the information set out in Schedule

9 part D and shall be published in accordance with regulation 44.

(3) In the case of framework agreements concluded in

accordance with regulations 167 to 173, the authority responsible

for the tendering process shall not be bound to send a notice of the

results of the procurement procedure for each contract based on

that agreement

Provided that the authority responsible for the tendering

process shall group notices of the results of the procurement

procedure for contracts based on the framework agreement on a

quarterly basis. In that case, contracting authorities shall send the

grouped notices within thirty days of the end of each quarter.

(4) The authority responsible for the tendering process shall

send a contract award notice within thirty days after the award of

each contract based on a dynamic purchasing system. It may,

however, group such notices on a quarterly basis. In that case, it

shall send the grouped notices within thirty days of the end of each

quarter.

(5) Certain information on the contract award or the conclusion

of the framework agreement may be withheld from publication

where its release would impede law enforcement or otherwise be

contrary to the public interest, would harm the legitimate

commercial interests of a particular economic operator, public or

private, or might prejudice fair competition between economic

operators.

(1) Notices referred to in regulations 41, 42 and 43 are

obligatory only in respect to tenders with an estimated value which

meets or exceeds the threshold established under Schedule 5 and

shall include the information set out in Schedule 9 in the format of

standard forms, including standard forms for corrigenda.

(2) These notices shall also be drawn up, transmitted by

electronic means to the Publications Office of the European Union

and published in accordance with Schedule 10.

(3)

The authority responsible for the tendering process shall be

able to supply proof of the dates on which notices are dispatched.

(4) The confirmation of the receipt of the notice and the

publication of the information sent by the Publications Office of

the European Union shall constitute proof of publication.

(1) Unless otherwise authorised by the Director, tenders

issued with an estimated value which falls under regulation 9(1)(b)

shall be published through government’s e-procurement platform

Provided that if the authority responsible for the tendering

process does not make use of the government’s e-procurement

platform it shall advertise the tender on the Gazette.

(2) Notices referred to in regulations 41, 42 and 43 and the

information contained therein shall not be published at national

level before the publication pursuant to regulation 44

Provided that publication may in any event take place at the

national level where the authority responsible for the tendering

process has not been notified of the publication within forty-eight

hours after confirmation of the receipt of the notice in accordance

with regulation 44.

(3) Notices and advertisements published locally shall not

contain information other than that contained in the notices

dispatched to the Publications Office of the European Union or

published on a buyer profile, but shall indicate the date of dispatch

of the notice to the Publications Office of the European Union or its

publication on the buyer profile.

(4) Prior information notices shall not be published on a buyer

profile before the dispatch to the Publications Office of the

European Union of the notice of their publication in that form.

They shall indicate the date of that dispatch.

(1) The authority responsible for the tendering process

that intends to carry out a design contest with an estimated value

which meets or exceeds the threshold established under Schedule 5

shall make known their intention by means of a contest notice.

(2) Where it intends to award a subsequent service contract

pursuant to regulation 154(1)(b), this shall be indicated in the

contest notice. In the case where no contest notice needs to be

published the contracting authority must make its intention clear in

the procurement documents.

(3) The authority that has held a design contest shall send a

notice of the results of the contest in accordance with regulation 44

and shall be able to prove the date of dispatch.

(4) Where the release of information on the outcome of the

contest would impede law enforcement, would be contrary to the

public interest or would prejudice the legitimate commercial

interests of a particular enterprise, whether public or private, or

might prejudice fair competition between service providers, such

information may be withheld from publication.

(5) The notices referred to in sub-regulations (1) to (4) shall be

published in accordance with regulations 44 and 45. They shall

include the information set out respectively in Schedule 9 parts E

and F in the format of the standard forms.

Preliminary Market Consultations

(1) Before

launching

a

procurement

procedure,

contracting authorities may conduct market consultations with a

view to preparing the procurement and informing economic

operators 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 principles of non-discrimination and transparency.

Communications

(1) All communication and information exchange under

these regulations, including electronic submission, shall be

performed using electronic means of communication in accordance

with the requirements of this regulation.

(2) The tools and devices to be used for communicating by

electronic means, as well as their technical characteristics, shall be

non-discriminatory, generally available and interoperable with the

ICT products in general use and shall not restrict economic

operators’ access to the procurement procedure.

(3) Notwithstanding the provisions of sub-regulations (1) and

(2 ) , co n tr a c t i ng a u t ho r i ti e s s ha l l n ot b e ob l i ge d t o r e qu i r e

electronic means of communication in the submission process in

the following situations

(a) due to the specialised nature of the procurement, the

use of electronic means of communication would

require specific tools, devices or file formats that are

not generally available or supported by generally

available applications;

(b) the applications supporting file formats that are

suitable for the description of the tenders use file

formats that cannot be handled by any other open or

generally available applications or are under a

proprietary licensing scheme and cannot be made

available for downloading or remote use by the

contracting authority;

(c) the use of electronic means of communication would

require specialised office equipment that is not

generally available to contracting authorities;

(d) the procurement documents require the submission of

physical or scale models which cannot be transmitted

using electronic means.

(4) In respect of communications for which electronic means of

communication are not used pursuant to sub-regulation (3),

communication shall be carried out by post or other suitable carrier

or by a combination of post or other suitable carrier and electronic

means.

(5) The authority responsible for the tendering process is not

obliged to require electronic means of communication in the

submission process to the extent that the use of means of

communication other than electronic means is necessary either

b e c a u s e o f a b r e a c h o f se c u ri t y o f t he e l e c t r o n ic m e a n s o f

communications or for the protection of the particularly sensitive

nature of information requiring such a high level of protection that

it cannot be properly ensured by using electronic tools and devices

that are either generally available to economic operators or can be

made available to them by alternative means of access within the

meaning of sub-regulations (5) and (6).

(6) It shall be the responsibility of the authority responsible for

the tendering process requiring, in accordance with sub-regulation

(3), means of communication other than electronic means in the

submission process to indicate in the individual report referred to in

regulations 29 or 241, as the case may be, the reasons for this

requirement. Where applicable, the authority responsible for the

tendering process shall indicate in the individual report the reasons

why use of means of communication other than electronic means

has been considered necessary in application of sub-regulation (5).

(7) Oral communication may be used in respect of

communications other than those concerning the essential elements

of a procurement procedure, provided that the content of the oral

communication is documented to a sufficient degree. For this

purpose, the essential elements of a procurement procedure include

the procurement documents, requests for participation,

c o n f i r m a t i o n s o f i n t e r e s t a n d t e n d e r s . I n p a r t i c u l a r, o r a l

communications with tenderers which could have a substantial

impact on the content and assessment of the tenders shall be

documented to a sufficient extent and by appropriate means, such

as written or audio records or summaries of the main elements of

the communication.

(8) In all communication, exchange and storage of information,

the authority responsible for the tendering process shall ensure that

the integrity of data and the confidentiality of tenders and requests

to participate are preserved. It shall examine the content of tenders

and requests to participate only after the time limit set for

submitting them has expired.

(9) For public works contracts and design contests the

authority responsible for the tendering process require the use of

specific electronic tools, such as of building information electronic

modelling tools or similar. In such cases the authority responsible

for the tendering process shall offer alternative means of access, as

provided for in sub-regulations (10) and (11), until such time as

those tools become generally available within the meaning of sub-

regulation (2).

(10) The authority responsible for the tendering process may,

where necessary, require the use of tools and devices which are not

generally available, provided that the authority responsible for the

tendering process offers alternative means of access.

(11) The authority responsible for the tendering process shall be

deemed to offer suitable alternative means of access in any of the

following situations, where they

(a) offer unrestricted and full direct access free of charge

by electronic means to those tools and devices from

the date of publication of the notice in accordance with

Schedule 11 or from the date when the invitation to

confirm interest is sent. The text of the notice or the

invitation to confirm interest shall specify the internet

address at which those tools and devices are

accessible;

(b) ensure that tenderers having no access to the tools and

devices concerned, or no possibility of obtaining them

within the relevant time limits, provided that the lack

of access is not attributable to the tenderer concerned,

may access the procurement procedure through the use

of provisional tokens made available free of charge

online; or

(c) support an alternative

channel

for

electronic

submission of tenders.

(12) In addition to the requirements set out in Schedule 8, the

following rules shall apply to tools and devices for the electronic

transmission and receipt of tenders and for the electronic receipt of

requests to participate

(a) information on specifications for the electronic

submission of tenders and requests to participate,

including encryption and time-stamping, shall be

available to interested parties;

(b) the authority responsible for the tendering process

shall specify the level of security required for the

electronic means of communication in the various

stages of the specific procurement procedure; that

level shall be proportionate to the risks attached

Provided that the requirement established under this

paragraph shall be deemed to be satisfied when

electronic means of communications are carried out

through government’s e-procurement platform;

(c) where the authority responsible for the tendering

process acting within an overall framework concludes

that the level of risks, assessed under paragraph (b), is

such that advanced electronic signatures as defined by

Directive 1999/93/EC of the European Parliament and

of the Council are required, contracting authorities

shall accept advanced electronic signatures supported

by a qualified certificate, taking into account whether

those certificates are provided by a certificate services

provider, which is on a trusted list provided for in

Commission Decision 2009/767/EC, created with or

without a secure signature creation device, subject to

compliance with the following conditions

(i)

the authority responsible for the tendering

process shall establish the required advanced

signature format on the basis of formats

established in Commission Decision 2011/130/

EU and shall put in place necessary measures to

be able to process these formats technically; in

case a different format of electronic signature is

used, the electronic signature or the electronic

document carrier shall include information on

existing validation possibilities. The validation

possibilities

shall

allow

the

authority

responsible for the tendering process to validate

online, free of charge and in a way that is

understandable for non-native speakers, the

received electronic signature as an advanced

electronic signature supported by a qualified

certificate;

(ii) where a tender is signed with the support of a

qualified certificate that is included on a trusted

list, the authority responsible for the tendering

process shall not apply additional requirements

that may hinder the use of those signatures by

tenderers.

(13) In respect of documents used in the context of a

procurement procedure that are signed by a competent authority or

by another issuing entity, the competent issuing authority or entity

may establish the required advanced signature format in accordance

with the requirements set out in Article 1(2) of Decision 2011/130/

EU.

(14) For the purposes of sub-regulation (13), the competent

authority or entity shall put in place the necessary measures to be

able to process that format technically by including the information

req uired fo r the pu rpose of processing the signature in the

d o c u m e n t c o n c e r n ed . S u c h d o c u m e n t s s h a l l c o n t a i n i n t h e

electronic signature or in the electronic document carrier

information on existing validation possibilities that allow the

validation of the received electronic signature online, free of

charge and in a way that is understandable for non-native speakers.

(15) For the purposes of this Part, contracting authorities listed

under Schedule 3 do not require the prior approval of the Director

but shall suffice the written consent by the head of that same

contracting authority.

(1) With regard to tenders with an estimated value which

falls under Schedule 5, the authority responsible for the tendering

process shall by electronic means offer unrestricted and full direct

access free of charge to the procurement documents from the date

of publication of a notice in accordance with regulation 44 or the

date on which an invitation to confirm interest is sent. The text of

the notice or the invitation to confirm interest shall specify the

internet address at which the procurement documents are

accessible.

(2) With regard to tenders with an estimated value which falls

under Schedule 5, where unrestricted and full direct access free of

charge by electronic means to certain procurement documents

cannot be offered for one of the reasons stipulated in regulation

48(2), the authority responsible for the tendering process may

indicate in the notice or the invitation to confirm interest that the

procurement documents concerned will be transmitted by means

other than electronic means

Provided that in such a case, the time limit for the

submission of tenders shall be prolonged by five days, except in the

cases of duly substantiated urgency referred to in regulations

116(3), 122 and 125.

(3) With regard to tenders with an estimated value which falls

under Schedule 5, where unrestricted and full direct access free of

charge by electronic means to certain procurement documents

cannot be offered because the authority responsible for the

tendering process intends to apply the provisions of regulation

40(3), it shall indicate in the notice or the invitation to confirm

interest which measures aimed at protecting the confidential nature

of the information it requires and how access can be obtained to the

documents concerned

Provided that in such a case the time limit for the

submission of tenders shall be prolonged by five days, except in the

cases of duly substantiated urgency referred to in regulations

116(3), 122 and 125.

(1) In restricted procedures, competitive dialogue

procedures, innovation partnerships and competitive procedures

with negotiation, contracting authorities shall simultaneously and

in writing invite the selected candidates to submit their tenders or,

in the case of a competitive dialogue, to take part in the dialogue.

(2) The invitations shall include a reference to the electronic

address on which the procurement documents have been made

directly available by electronic means. The invitations shall be

accompanied by the procurement documents, where those

documents have not been the subject of unrestricted and full direct

access, free of charge, for the reasons set out in regulation 49(1)

and (2) and have not already been made otherwise available. In

addition, the invitations referred to in sub-regulation (1) shall

include the information set out in Schedule 12.

(1) Where the use of electronic means of communication

is required, the authority responsible for the tendering process may

require tenders to be presented in the format of an electronic

catalogue or to include an electronic catalogue.

(2) Tenders presented in the form of an electronic catalogue

may be accompanied by other documents, completing the tender.

(3) Electronic catalogues shall be established by the candidates

or tenderers with a view to participating in a given procurement

procedure in accordance with the technical specifications and

format established by the contracting authority.

(4) Electronic catalogues shall comply with the requirements

for electronic communication tools as well as with any additional

requirements set by the contracting authority in accordance with

regulation 48.

(5) Where the presentation of tenders in the form of electronic

catalogues is accepted or required, the authority responsible for the

tendering process shall

(a) state so in the contract notice;

(b) indicate in the procurement documents all the

necessary information pursuant to regulation 48(12)

concerning the format, the electronic equipment used

and the technical connection arrangements and

specifications for the catalogue.

(6) Where a framework agreement has been concluded with

more than one economic operator following the submission of

t e n de r s i n t he f o r m o f e l e c t r o ni c c a t a l o g ue s , t h e a u t ho r i t y

resp onsibl e for th e tendering pro cess m ay provi de that the

reopening of competition for specific contracts takes place on the

basis of updated catalogues. In such a case, the authority

responsible for the tendering process shall use one of the following

methods

(a) invite tenderers to resubmit their electronic catalogues,

adapted to the requirements of the contract in question;

or

(b) notify tenderers that they intend to collect from the

electronic catalogues which have already been

submitted the information needed to constitute tenders

adapted to the requirements of the contract in question;

provided that the use of that method has been

announced in the procurement documents for the

framework agreement.

(7) Where authorities responsible for the tendering process

reopen competition for specific contracts in accordance with sub-

regulation (6)(b) they shall notify tenderers of the date and time at

which they intend to collect the information needed to constitute

tenders adapted to the requirements of the specific contract in

question and shall give tenderers the possibility to refuse such

collection of information.

(8) Authorities responsible for the tendering process shall

allow for an adequate period between the notification and the actual

collection of information.

(9) Before awarding the contract, authorities responsible for

the tendering process shall present the collected information to the

tenderer concerned so as to give it the opportunity to contest or

confirm that the tender thus constituted does not contain any

material errors.

(10) Authorities responsible for the tendering process may

a wa r d c on t ra c t s b a s e d o n a dy n a m ic p u rc ha s in g s y s t e m b y

requiring that offers for a specific contract are to be presented in

the format of an electronic catalogue.

(11) Authorities responsible for the tendering process may also

award contracts based on a dynamic purchasing system in

accordance with sub-regulation (6)(b) and sub-regulations (7), (8)

and (9) provided that the request for participation in the dynamic

purchasing system is accompanied by an electronic catalogue in

accordance with the technical specifications and format established

by the contracting authority.

(12) For the purposes of sub-regulation (11), the catalogue shall

be completed subsequently by the candidates, when they are

informed of the contracting authority’s intention to constitute

tenders by means of the procedure set out in sub-regulation (6)(b).

Time Limits and Technical Specifications

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

tenders and requests to participate, authorities responsible for the

tendering process shall take account of the complexity of the

contract and the time required for the drawing up of procurement

documents, without prejudice to the minimum time limits set out in

regulations 116, 121, 122, 125, 142 and 132.

(2) Where tenders can be submitted only after a site visit or

after on-the-spot inspection of the documents supporting the

procurement documents, the time limits for the receipt of tenders

shall be longer than the minimum time limits set out in regulations

116, 121, 122, 125, 142 and 132, and shall be fixed so that all

economic operators concerned may be aware of all the information

needed to produce tenders.

(3) Contracting authorities shall extend the time limits for the

receipt of tenders so that all economic operators concerned may be

aware of all the information needed to produce tenders in the

following cases

(a) where, for whatever reason, additional information,

although requested by the economic operator in good

time, is not supplied at the latest six days before the

time limit fixed for the receipt of tenders. In the event

of an accelerated procedure as referred to in

regulations 116(3) and 122, that period shall be four

days;

(b) where significant changes are made to the procurement

documents.

(4) The length of the extension shall be proportionate to the

importance of the information or change.

(5) Where the additional information has either not been

requested in good time or its importance with a view to preparing

responsive tenders is insignificant, authorities responsible for the

tendering process shall not be required to extend the time limits.

(6) Late submission of tenders shall be disqualified from the

process.

(1) The technical specifications shall be set out in the

procurement documents and these shall lay down the characteristics

required of a works, service or supply.

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

or method of production or provision of the requested works,

supplies or services or to a specific process for another stage of its

life cycle, even where such factors do not form part of their

material substance, so long they are linked to the subject-matter of

the contract and are proportionate to its value and its objectives.

(3) The technical specifications may also specify whether the

transfer of intellectual property rights will be required.

(4) For all procurement which is intended for use by natural

p ersons, whet her general pub lic o r staff o f t he con tract ing

authority, the technical specifications shall, except in duly justified

cases, be drawn up so as to take into account accessibility criteria

for persons with disabilities or design for all users.

(5) Where mandatory accessibility requirements are adopted by

a legal act of the Union, technical specifications shall, as far as

accessibility criteria for persons with disabilities or design for all

users are concerned, be defined by reference thereto.

(6) Technical specifications shall afford equal access of

economic operators to the procurement procedure and shall not

have the effect of creating unjustified obstacles to the opening up

of public procurement to competition.

(7) Without prejudice to mandatory technical rules, to the

extent that they are compatible with Union law, the technical

specifications shall be formulated in one of the following ways

(a) in terms of performance or functional requirements,

including environmental characteristics, 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;

(b) by reference to technical specifications and, in order of

preference, to national standards transposing European

standards, European Technical Assessments, common

technical specifications, international standards, other

technical reference systems established by the

European standardisation bodies or - when any of

those do not exist - national standards, national

technical approvals or national technical specifications

relating to the design, calculation and execution of the

works and use of the supplies; each reference shall be

accompanied by the words ‘or equivalent’;

(c) in terms of performance or functional requirements as

referred to in paragraph (a), with reference to the

technical specifications referred to paragraph (b) as a

means of presuming conformity with such

performance or functional requirements;

(d) by reference to the technical specifications referred to

in paragraph (b) for certain characteristics, and by

reference to the performance or functional

requirements referred to in paragraph (a) for other

characteristics.

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

technical specifications 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 origin or production with the effect of

favouring or eliminating certain undertakings or certain products.

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

sufficiently precise and intelligible description of the subject-

matter of the contract pursuant to sub-regulation (3) is not possible.

Such reference shall be accompanied by the words ‘or equivalent’.

(9) Where a contracting authority uses the option of referring

to the technical specifications referred to in sub-regulation 7(b), it

shall not reject a tender on the grounds that the works, supplies or

services tendered for do not comply with the technical

specifications to which it has referred, once the tenderer proves in

its tender by any appropriate means, including the means of proof

referred to in regulation 232, that the solutions proposed satisfy in

an equivalent manner the requirements defined by the technical

specifications.

(10) Where a contracting authority uses the option laid down in

sub-regulation (7)(a) to formulate technical specifications in terms

of performance or functional requirements, it shall not reject a

tender for works, supplies or services which comply with a national

standard transposing a European standard, a European technical

approval, a common technical specification, an international

standard or a technical reference system established by a European

standardisation body, where those specifications address the

performance or functional requirements which it has laid down.

(11) In its tender, the tenderer shall prove by any appropriate

means, including those referred to in regulation 232 that the work,

supply or service in compliance with the standard meets the

pe rfo r m an ce or f un ct i o na l req u ir e m e n ts o f th e c on t r a c t i ng

authority.

(1) Where contracting authorities and, or the authorities

responsible for the tendering process intend to purchase works,

supplies or services with specific environmental, social or other

characteristics they may, in the technical specifications, the award

criteria or the contract performance conditions, require a specific

label as means of proof that the works, services or supplies

correspond to the required characteristics, provided that all of the

following conditions are fulfilled

(a) the label requirements only concern criteria which are

linked to the subject-matter of the contract and are

appropriate to define characteristics of the works,

supplies or services that are the subject-matter of the

contract;

(b) the label requirements are based on objectively

verifiable and non-discriminatory criteria;

(c) the labels are established in an open and transparent

procedure in which all relevant stakeholders, including

government bodies, consumers, social partners,

manufacturers, distributors and non-governmental

organisations, may participate;

(d) the labels are accessible to all interested parties;

(e) the label requirements are set by a third party over

which the economic operator applying for the label

cannot exercise a decisive influence.

(2) Where contracting authorities do not require the works,

supplies or services to meet all of the label requirements, they shall

indicate which label requirements are referred to.

(3) Contracting authorities requiring a specific label shall

accept all labels that confirm that the works, supplies or services

meet equivalent label requirements.

(4) Where an economic operator had demonstrably no

p ossi bi li ty o f ob tai ni ng t he spec ific la bel i nd icat ed by t he

contracting authority or an equivalent label within the relevant time

limits for reasons that are not attributable to that economic

operator, the contracting authority shall accept other appropriate

means of proof, which may include a technical dossier from the

manufacturer, provided that the economic operator concerned

proves that the works, supplies or services to be provided by it

fulfil the requirem ent s of the specific label or the sp ecific

requirements indicated by the contracting authority.

(5) Where a label fulfils the conditions provided in sub-

regulation (1)(b), (c), (d) and (e) but also sets out requirements not

linked to the subject-matter of the contract, contracting authorities

shall not require the label as such but may define the technical

specification by reference to those of the detailed specifications of

that label, or, where necessary, parts thereof, that are linked to the

subject-matter of the contract and are appropriate to define

characteristics of this subject-matter.

(1) The authorities responsible for the tendering process

may require that economic operators provide a test report from a

conformity assessment body or a certificate issued by such a body

as means of proof of conformity with requirements or criteria set

out in the technical specifications, the award criteria or the contract

performance conditions.

(2) Where the authorities responsible for the tendering process

require the submission of certificates drawn up by a specific

conformity assessment body, certificates from equivalent other

conformity assessment bodies shall also be accepted by the

contracting authorities.

(3) The authorities responsible for the tendering process shall

accept appropriate means of proof other than those referred to in

sub-regulations (1) and (2), such as a technical dossier of the

manufacturer where the economic operator concerned had no

access to the cer tificates or test reports referred to in sub-

regulations (1) and (2), or no possibility of obtaining them within

the relevant time limits, provided that the lack of access is not

attributable to the economic operator concerned and provided that

the economic operator concerned thereby proves that the works,

supplies or services provided by it meet the requirements or criteria

set out in the technical specifications, the award criteria or the

contract performance conditions.

The Tenderer/Candidate

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

public entity or group of such persons and, or entities.

Economic operators that, under the law of the Member

State in which they are established, are entitled to provide the

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

under the law of Malta, they would be required to be either natural

or legal persons

Provided that in the case of public service and public works

contracts as well as public supply contracts covering in addition

services or sitting and installation operations, legal persons may be

required to indicate, in the tender or the request to participate, the

names and relevant professional qualifications of the staff to be

responsible for the performance of the contract in question.

(1) Groups of economic operators, including temporary

associations, may participate in procurement procedures. They

shall not be required by contracting authorities to have a specific

legal form in order to submit a tender or a request to participate.

(2) Where necessary, the authorities responsible for the

tendering process may clarify in the procurement documents how

groups of economic operators are to meet the requirements as to

economic and financial standing or technical and professional

ability referred to in regulation 217 provided that this is justified by

objective reasons and is proportionate.

(3) Any conditions for the performance of a contract 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.

(4) The authorities responsible for the tendering process may

require groups of economic operators to assume a specific legal

form once they have been awarded the contract, to the extent that

such a change is necessary for the satisfactory performance of the

contract.

(1) Where a candidate or tenderer or an undertaking

related to a candidate or tenderer has advised the contracting

authority or the authority responsible for the tendering process,

whether in the context of regulation 47 or not, or has otherwise

been involved in the preparation of the procurement procedure, the

contracting authority or the authority responsible for the tendering

process shall take appropriate measures to ensure that competition

is not distorted by the participation of that candidate or tenderer.

(2)

Such measures shall include the communication to the other

candidates and tenderers of relevant information exchanged in the

context of or resulting from the involvement of the candidate or

tenderer in the preparation of the procurement procedure and the

fixing of adequate time limits for the receipt of tenders. The

candidate or tenderer concerned shall only be excluded from the

procedure where there are no other means to ensure compliance

with the duty to observe the principle of equal treatment.

(3) Prior to any such exclusion, candidates or tenderers shall be

given the opportunity to prove that their involvement in preparing

the procurement procedure is not capable of distorting competition.

The measures taken shall be documented in the individual report

required by regulations 113 or 241, as the case may be.

(1) In the procurement documents, the authority

responsible for the tendering process may ask the tenderer to

indicate in its tender any share of the contract it may intend to sub-

contract to third parties and any proposed subcontractors.

(2) The tenderer as the main contractor is liable for all acts or

omissions carried out by his sub-contractors.

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

be provided at a facility under the direct oversight of the

contracting authority, after the award of the contract and at the

latest when the performance of the contract commences, the

contracting authority shall require the main contractor to indicate to

the contracting authority the name, contact details and legal

representatives of its sub-contractors, involved in such works or

services, in so far as known at this point in time. The contracting

authority shall require the main contractor to notify the contracting

authority of any changes to this information during the course of

the contract as well as of the required information for any new sub-

contractors which it subsequently involves in such works or

services

Provided that this sub-regulation shall not apply to

suppliers.

(4) Where necessary for the purposes of regulation 191(2) and

(3), the required information relating to sub-contractors shall be

accompanied by the sub-contractors’ self-declarations as provided

for in regulation 226.

(5) Contracting authorities may

extend

the

obligations

provided for in sub-regulation (3) to

(a) supply contracts, services contracts (other than those

concerning services to be provided at the facilities

under the direct oversight of the contracting authority)

or suppliers involved in works or services contracts;

(b) sub-contractors of the main contractor’s sub-

contractors or further down the subcontracting chain.

(6) Sub-contractors are to observe the obligations established

under regulation 13(m) during the execution of the contracts.

(7) The contracting authority shall have the right to suspend

payments and, or even opt to dissolve the contract if the main

contractor fails to abide by his obligations under this regulation.

The Selected Offer

(1) Contracts with an estimated value which falls within

regulation 9(1)(a) shall be awarded on the basis of criteria laid

down in accordance with regulations 239 and 240 provided that the

authority responsible for the tendering process has verified in

accordance with regulations 230, 231, 232 and 233 that all of the

following conditions are fulfilled

(a) the tender complies with the requirements, conditions

and criteria set out in the procurement documents; and

(b) the tender is submitted by a tenderer that is not

excluded in accordance with Part VI and that meets the

selection criteria set out by the contracting authority in

accordance with regulation 217.

(2) Contracts with an estimated value which falls under

regulation 9(1)(b) shall be awarded on the basis of criteria laid

down in accordance with regulations 239, 240 and 243 provided

that the authority responsible for the tendering process has verified

in accordance with regulations 225, 230, 231, 232 and 233 that all

of the following conditions are fulfilled

(a) the tender complies with the requirements, conditions

and criteria set out in the contract notice or the

invitation to confirm interest and in the procurement

documents, taking into account, where applicable,

regulations 33 to 37;

(b) the tender is submitted by a tenderer that is not

excluded in accordance with Part VI and that meets the

selection criteria set out by the contracting authority in

accordance with regulation 217 and, where applicable,

the non-discriminatory rules and criteria referred to in

regulation 237.

(1) Without prejudice to Part VI and regulation 235(2), the

authority responsible for the tendering process must ensure that an

economic operator 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

economic operators is or appears to be incomplete or erroneous or

where specific documents are missing, contracting authorities in

terms of the procurement document may request the economic

operators concerned to submit, supplement, clarify or complete the

relevant information or documentation within an appropriate time

limit

Provided that such requests are made in full compliance

with the principles of equal treatment and transparency.

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

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

procurement document.

The submitted tender shall be accompanied by the

information for qualitative selection that is requested by the

contracting authority.

Part II

Boards, Committees and Tribunals

General Contracts Committee

There shall be a General Contracts Committee whose

members shall be appointed by the Prime Minister on such terms

and conditions as may be specified in their letter of appointment.

(1) The General Contracts Committee shall be composed

of the Director of Contracts, who shall be ex officio chairman,

together with not less than four and not more than ten other

members who appear to the Prime Minister to have the relevant

qualifications or experience.

(2) During the chairman’s absence or inability to act as

chairman, or during any vacancy in the office of the chairman, the

Prime Minister may appoint an officer from among the most senior

of officers at the Department of Contracts to act as the chairman of

the General Contracts Committee, to exercise all powers and

perform all the functions of the chairman.

The members of the General Contracts Committee shall be

appointed for a fixed term of not more than three years.

(1) Any member of the General Contracts Committee may

during his tenure of office be removed by the Prime Minister 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 of the General Contracts

Committee.

(2) A person shall be disqualified from being appointed to and

from remaining a member of the General Contracts 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 that is likely to

prejudice the discharge of his functions as a member of

the General Contracts Committee;

(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.

(3) A member of the General Contracts Committee may resign

his office by a letter addressed to the Prime Minister.

A member of the General Contracts Committee who has

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

committee shall disclose the nature of his interest at the first

meeting of that committee after the relevant facts have come to his

knowledge and 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.

(1) Decisions of the General 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.

(2) Without prejudice to the provisions of the Interpretation

Act and to any order or direction given by the Minister

(a) the Director may, at his discretion, accept or reject the

recommendations of the majority of the members of

the General Contracts Committee for the acceptance or

rejection of any tender;

(b) where

(i)

the Director disagrees with any recommendation

of the majority of the members of the General

Contracts Committee; or

(ii) any recommendation of the General Contracts

Committee differs from that submitted by the

Department or other body for whom the

procurement is to be made,

the Director may refer the matter for the decision of

the Minister

Provided that the Director shall always refer any

matter in which he disagrees with the majority of the

members of a General Contracts Committee or a

Special Contracts Committee, as referred to in

regulation 78, for the decision of the Minister;

(c) the Director may, at his discretion, refer any matter for

the decision of the Minister provided that any decision

taken by the Minister under the Interpretation Act or

after any referral to him by the Director and which has

a direct influence on the award of any contract by the

Director to any particular tenderer shall not deprive in

any way the right of any candidate or tenderer and any

person having or having had an interest in obtaining a

particular public contract to have recourse to the

appeals procedures provided for in these regulations.

(3) Any matter referred for the decision of the Minister shall be

so referred in writing and the decision of the Minister shall likewise

be communicated in writing.

The Prime Minister shall also appoint persons from among

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

General Contracts Committee and of other committees, as referred

to in this Part, as may be directed by the Director. The secretaries

shall not be members of these committees and may not vote.

(1) The meetings of the General Contracts Committee

shall be called by the chairman who shall preside over such

meetings. Any three members of the General Contracts Committee

shall constitute a quorum at a meeting thereof.

(2) The meetings of the General Contracts Committee shall be

open to the public during the opening of bids. The list of tenders

received, together with the respective prices, shall be given

publicity by the Director immediately after their opening and

scheduling.

(3) The General Contracts Committee and the Special

Contracts Committees, established in terms of these regulations

shall regulate their own proceedings, unless otherwise provided for

herein.

The General Contracts Committee shall

(a) advise on all matters relating to public contracts, as

well as on public procurement of materials, works and

services either on its own initiative or on specific

issues relating to its functions which may from time to

time be referred to it for its advice;

(b) evaluate reports and recommendations submitted by

contracting

authorities

and

make

definite

recommendations for the award of contracts ensuring

that the best value for money at the lowest possible

cost is attained. In this regard, due consideration shall

be given to

(i)

the final cost including financing costs to the

contracting authority; and

(ii) the impact of each offer on the recurrent

expenditure of a contracting authority;

(c) 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 concerned;

(d) deal with matters which, according to the contract,

have to be referred to it, and hear and mediate disputes

between contracting authorities, as the case may be,

and contractors, arising out of public contracts;

(e) formally investigate complaints concerning public

contracts

and

procurements

and

make

recommendations thereon; and

(f)

assist the Director in the execution of his duties in

accordance with these regulations.

Departmental Contracts Committee

There shall be a Departmental Contracts Committee for

contracting authorities listed in Schedule 2 and in Schedule 16,

which shall be responsible for procurement processes with an

estimated value starting from €10,000 up to the threshold established

under regulation 9(1)(a)

Provided that in the case of call for tenders published by the

Sectoral Procurement Directorate the responsibility for the process

shall increase the procurement processes that have an estimated

value which but does not exceed seven hundred and fifty thousand

euro (€750,000).

The Departmental Contracts Committee shall be composed

of three members, as follows

(a) a chairman, who shall be the The Head of the

Department responsible for Corporate Services, or his

representative;

(b) a member appointed by the Permanent Secretary of the

concerned ministry; and

(c) a member representing the Director of Contracts,

which member may also be a member of the General

Contracts Committee.

The Departmental Contracts Committee shall make definite

recommendations for the award of the contract, and a copy of its

recommendation shall be forwarded to the Director.

Ad hoc Committees and the Special Contracts Committee

The Minister may authorise the setting up of committees, to

be known as ad hoc Committees, in respect of tenders whose

estimated value is equal or exceeds the thresholds established under

regulation 9(1)(b).

(1) Each ad hoc Committee shall be composed of the head

of the department, or, in his absence, an officer appointed by the

Minister from among the most senior of officials at the contracting

authority affecting the purchase. This nominee shall be, ex officio,

chairman of the Committee together with not less than four other

members appointed by the Minister, none of whom shall be

performing duties at, or be members of the staff of, the department

effecting the purchase.

(2) The function of the ad hoc Committee shall be indicated by

the Minster in their letter of appointment.

(1) Where the Prime Minister determines that the

adjudication of tenders for the award of any particular contract

requires special expertise, skills or other specialist knowledge, he

may appoint a Special Contracts Committee for the award of that

public contract.

(2) The members of the Special Contracts Committee shall be

appointed for the duration of the adjudication process of the

particular call for tenders.

PUBLIC PROCUREMENT

(3) Subject to the provisions of regulation 17(1)(b) the

provisions of regulations 64 to 72 shall mutatis mutandis apply to

the Special Contracts Committee.

The Office of the Director Sectoral Procurement

(1) There shall be a Director Sectoral Procurement who shall

be responsible for the administration and management of the Sectoral

Procurement Directorate.

(2)

The functions of the Director Sectoral Procurement shall

(a) to ensure that these regulations are abided by;

(b) to observe and abide by any instruction issued by the

Director of Contracts;

(c) to ensure that each contracting authority listed under

Schedule 16 is assisted in the publication of a call for

tenders issued under the open or restricted procedure;

(d) to manage and administer the Sectorial Procurement

Directorate;

(e) to monitor the procurement activities of contracting

authorities listed under Schedule 16, as administered

and managed by the Sectoral Procurement Directorate,

with the aim of ensuring timely processing and award

of such calls;

(f) to provide information and guidance to contracting

authorities listed under Schedule 16, whilst ensuring

that such information and guidance are aligned with

direction, policies and instructions given by the

Director of Contracts;

(g) 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 seven

hundred and fifty thousand euro (€750,000);

(h) 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 economic operators;

(i)

to indicate in their procurement documents that the

award of the contract is subject to the review

procedure as set forth in these regulations and to

include an extract of the relevant part of the appeals

process in the said documents for the guidance of

economic operators;

(j)

to inspect and approve, with or without amendments,

tender documents, before these are issued and

published;

(k) to publish every six (6) months in the Gazette the

following

(i)

a list of contracts recommended for award by the

Sectoral Procurement Directorate;

(ii) a list of modifications to contracts which exceed

the contract value by more than five percent

(5%) provided that the estimated value of the

call exceeds ten thousand euro (€10,000) but is

below one hundred and forty three thousand

(€143,000);

(iii) a list of all modifications to contracts which had

an estimated value meeting or exceeding one

hundred forty three thousand euro (€143,000) but

not exceeding seven hundred and fifty thousand

euro (€750,000);

(l)

to forward the recommendations for the award of

contracts to the Departmental Contract Committee;

(m) to make recommendations in the name of the

contracting authorities according to what is provided

for under these regulations;

(n) to consider an extension or the cancellation of a

procurement procedure; and

(o) to send a copy of the contract to the Director of contracts

when he so requests.

(3) In spite of what is established in these regulations the

Minister may, irrespective of the value of the contract, order that a

contracting authority listed under Schedule 16 must forward the

call for tenders to the Director so that they are administered by him

in accordance with regulation 12 and 13.

(4) The contracts which result from a call for tenders published by

the Sectoral Procurement Directorate shall be signed by the head of the

contracting authority or another person who is delegated by him in

writing on whose behalf the call has been published.

(5)

Repealed by Legal Notice 56 of 2021.

Public Contracts Review Board

There shall be established a Public Contracts Review

Board, hereinafter referred to as "the Review Board", to determine

issues as contemplated under these regulations.

(1) The Review Board shall be composed of a chairman

and two permanent members, one of whom shall act as a Vice-

chairman, all appointed by the Prime Minister on the advice of the

Minister for a period of three years with the possibility of re-

appointment.

(2) The Prime Minister may appoint a person, or such number of

persons as additional permanent members of the Review Board who

shall be appointed for pre-determined periods of time, who shall act

instead of any one or more, or all of the permanent members

composing the Review Board in accordance with sub-regulation (1),

whenever the circumstances so require.

(3)

Deleted by Legal Notice 47 of 2025.

The members of the Review Board may be individually

removed from office by the Prime Minister on the ground of proved

inability to perform the functions of that office whether arising

from infirmity of body or mind or any other cause or because of

proven misbehaviour.

The members of the Review Board shall receive such

remuneration as the Prime Minister may determine.

The Review Board shall be assisted by a secretary who

shall also carry out such additional duties as instructed by the

chairman

Provided that when the circumstances so require any one of

the additional permanent members appointed in accordance with

regulation 81(2) may also act as a secretary.

(1) The chairman or other members of the Review Board

shall be disqualified from hearing a case in such circumstances as

would disqualify a judge in a civil suit, and in any such case the

chairman or member shall be substituted by another member on the

panel.

(2) A person shall be disqualified from being appointed or

continuing to be a member of the Review Board if he is a member

of the House of Representatives or of the European Parliament or

of a Local Council or of any other administrative board or tribunal

or if he has a financial or other interest as is likely to prejudice the

discharge of his functions as a member of the Review Board.

(3) Any member of the Review Board who may have a direct or

indirect interest in any contract which becomes the subject of a

complaint shall inform the chairman in writing of such interest in

which case the member shall be precluded from further

participation in the hearing of the complaint.

The members of the Review Board shall not be precluded

from the exercise of their respective profession, however, during

the term of their appointment they shall be precluded from the

exercise of their profession in cases before the Review Board.

It shall be the function of the Review Board to address in

particular

(a) concerns or complaints raised before the closure of a

submission of a tender by candidates or persons having

an interest in obtaining a particular public contract;

(b) complaints raised by tenderers or candidates relating

to exclusions, non-compliant offers, contract award

decisions or cancellations of a procurement procedure

after the closing date and time set for the submission

of the said call;

(c) requests for the ineffectiveness of a public contract as

established in these regulations;

(d) to hear and determine any cases assigned to it under

these regulations or any other law; and

(e) to hear and determine any cases assigned to it in a

public call for tenders or quotations, even if such call

does not involve procurement.

The members of the Review Board shall not be held

personally liable for any act or omission done in good faith in the

course of the exercise of their functions as members of the said

board.

(1) The sessions of the Review Board during which the

complaint is heard shall be held in public and both the complainant

and any interested party shall have the right to attend and to be

accompanied by any person, professional or otherwise, who they

consider suitable to defend their interests.

(2) The secretary of the Review Board shall keep a record of

everything done in each session.

(3) The Review Board may postpone a session if it is satisfied

that any one of the parties or any witness was prevented from

appearing before it owing to illness or absence from Malta.

(1) The Review Board shall be empowered to order or

permit amendments of written pleadings and to engage any expert

to assist it in its investigations.

(2) It shall also have the power to determine the procedure for

the hearing of all complaints lodged before it and shall ensure that

during the public hearing all interested parties are given the

opportunity to make their case.

(3) In its decision the Review Board shall have the power to

cancel the tendering process if it appears to it that this is the best

solution in the circumstances of the case; in this case no party shall

hav e any r i gh t to req ue st dam ag es be cause o f t he de cisi on

cancelling the call.

(4) The Review Board shall have the power to take such

interim measures as it shall deem fit.

(5) All communications including those related to the

appointments of cases may be transmitted by the Review Board

through electronic means.

(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.

(1) When the Review Board appoints an expert for

assistance, the latter shall prepare a signed report containing the

inquiries made and his findings together with the grounds of such

findings.

(2) The Review Board shall allow the parties time to consider

the report and to make their submissions thereon.

(3)

The experts may be examined and cross-examined on their

report in the same manner as witnesses.

(4) The Review Board is not bound to adopt the report of the

expert against its own conviction.

(1) Upon the request of one of the parties, the Review

Board shall have the power to summon witnesses and to administer

the oath to any person appearing before it. Should a witness duly

notified by a summons signed by the chairman of the Review Board

fail to enter an appearance, such person shall be guilty of an

offence and liable, on conviction, to a fine (multa) of not less than

five hundred euro (€500) and not more than five thousand euro

(€5,000).

(2) The service of all summons, orders or other acts of the

Review Board shall be carried out by registered mail at least five

days before the date of the sitting.

(3) All evidence tendered by witnesses that are produced

before the Review Board shall be transcribed and put in writing in

the records of the proceedings.

(1) After appointing the application for hearing, and after

listening to the oral submissions made by all parties, the Review

Board shall establish a date in which it will deliver the judgment

during a public session.

(2) Decisions of the Review Board shall preferably be taken on

the basis of unanimity. However, majority decisions shall be

deemed to be the final decision of the Review Board. The chairman

and the other two members shall have one vote each.

(3) The decision of the Review Board shall be rendered in

writing, be signed by all members and be dated. In its decision the

Review Board shall indicate the reasons upon which such decision

was taken.

(4) In its decision the Review Board shall recommend on

whether any deposit submitted by a party should be refunded, in

whole or in part, or not.

(5) Unless there is an appeal, the decision of the Review Board

shall be final and shall constitute an executive title and may be

enforced in terms of article 273 of the Code of Organization and

Civil Procedure.

The Review Board shall by not later than six months after

the end of the financial year, make and submit to the Minister a

report dealing with the performance of the Board during the

financial year being reported upon. The report shall, in particular,

provide details regarding appeals submitted by candidates and

tenderers and any person having or having had an interest in

obtaining a particular public contract in terms of these regulations

and the decisions arrived at by the Review Board.

Commercial Sanctions Tribunal

There shall be established a Commercial Sanctions Tribunal

which shall have the function to hear and determine issues relating

to the black listing of persons.

(1) The Commercial Sanctions Tribunal shall be

composed of a chairman and two permanent members, one of

whom shall act as a Vice-chairman, all appointed by the Prime

Minister on the advice of the Minister for a period of three years

with the possibility of re-appointment.

(2) The Prime Minister shall also appoint for a period of three

years, with the possibility of re-appointment, a panel of three

substitute members to replace the permanent members, in the event

that one or more of the perm anent members cannot sit in a

particular case.

(1) The judicial acts, written pleadings and other documents

which are to be filed with the Secretary of the Commercial Sanctions

Tribunal may be filed in the Registry of the Civil Courts and Tribunals,

Malta.

(2) The provisions of regulations 82, 83, 84, 85, 86, 88, 89, 90,

91 and 92 applicable to the Review Board shall apply mutatis

mutandis also to the Commercial Sanctions Tribunal.

Decisions of the Commercial Sanctions Tribunal shall be

delivered by the Secretary to the Director of Contracts on the same

date in which the decision is delivered.

The Commercial Sanctions Tribunal shall, by not later than

six months after the end of the financial year, make and submit to

the Minister a report dealing with the performance during the

financial year being reported upon. The report shall, in particular,

provide details regarding its decisions.

Part III

Rules applicable to Departmental Tenders

Methods of Procurement according to the Contract Value

(1) Where the estimated value does not exceed five

thousand euro (€5,000), the supplies, works or services may

be procured departmentally either after obtaining a minimum of

three (3) quotations or after the publication in the government’s e-

procurement platform or through a direct contract at the discretion

o f t h e H e a d o f t h e C o n t r a c t i n g A u t h o r i t y, t a k i n g i n t o

consideration the amount involved, the urgency attached to the

procurement or restrictions of choice and availability

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."

(2) Where the estimated value exceeds five thousand euro

(€5,000), but does not exceed ten thousand euro (€10,000), the

supplies, works or services may be procured departmentally either

after obtaining quotations through government’s e-procurement

platform or through a direct contract at the discretion of the Head

of the Contracting Authority or any person delegated by him in

writing, taking into consideration the amount involved, the

urgency attached to the procurement or restrictions of choice and

availability.

Where the estimated value exceeds ten thousand euro

(€10,000), but does not exceed the threshold established under

regulation 9(1)(a), the supplies, works or services may be procured

after a departmental call for tenders.

(1) Unless authorisation in writing is granted by the

Director, calls for quotations exceeding five thousand euro

(€5,000) and departmental calls for tenders must be published

through government’s e-procurement platform.

(2) If the authority responsible for the tendering process does

not make use of government’s e-procurement platform for the call

for quo tati ons or t he dep artm ental call fo r t enders wit h an

estimated value which exceeds five thousand euro (€5,000), it must

give advice about their publication by means of an advertisement in

the Gazette.

Supplies, works or services valued in excess of ten

thousand euro (€10,000) may, in exceptional cases, be procured

through a direct contract by any contracting authority upon

obtaining the 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

Provided that contracting authorities listed under Schedule 3

shall obtain the prior approval of the Minister responsible for that

contracting authority who may delegate his authority in writing to the

Permanent Secretary, any senior official in his Ministry or to the Head

of the contracting authority instead of the Minister.

Subject to the relevant regulations under Part VI, Local

Councils shall follow the regulations made under the Local

Government Act.

Duties of Contracting Authorities

Before a procurement procedure is conducted, contracting

authorities may conduct market consultations as referred to in

regulation 47.

A call for tenders should, unless otherwise approved in

te rm s o f t h e s e r e g u la ti on s , b e c a r r i e d o ut th r o ug h an op e n

procedure.

The prior written consent of the Director shall be required

whenever the authority responsible for the tendering process

wishes to carry out a procurement process through a design contest,

a framework agreement, an innovation partnership or a restricted

procedure. In approving the use of these procedures the Director

may impose any condition he may deem appropriate for the correct

execution of the said procedure.

Procurement procedures involving the competitive

dialogue, competitive procedure with negotiation, dynamic

purchase systems, electronic auctions and negotiated procedure

without public notice shall not be permitted.

Unless otherwise provided for in these regulations, the

authorities responsible for the tendering process shall, through

government’s e-procurement pl atform, offer f ree o f charge

unrestricted and full direct access to the procurement documents,

from the date of publication of the procurement procedure.

(1) Tenders shall be opened in public by two officers of

the contracting authority. The names of the bidders and the prices

quoted shall also be made public either through government’s e-

procurement platform or on the notice board at the contracting

authority’s premises.

(2) The provisions of Part VI shall apply for the adjudication of

the tenders and quotations submitted.

(1) The Minister may allow that variations and the

imposition or remission of penalties in respect of such contracts be

approved by the Minister charged with responsibility for that

contracting authority, who may delegate his authority in writing to

the Parliamentary Secretary, the Permanent Secretary or the Head

of the contracting authority.

(2) Every six months the Head of the contracting authority

shall publish in the Gazette a full list of all departmental contracts

awarded by him with a value exceeding five thousand euro (€5,000)

and a list of all cases involving variations which exceed the original

contract values by more than five per cent. These two lists must

include the name of the economic operator, the nature of the

contracts, the original contract values and the final contract values,

as the case may be

Provided that, without prejudice to regulation 79, in the case

of contracting authorities listed under Schedule 16, the obligation

established under this sub-regulation shall apply when these

contracting authorities publish calls that are not regulated as an open

procedure.

(3) The regulations under this Part shall not apply when a

contracting authority is awarding a public contract to another

contracting authority or to a central purchasing body unless the

contracting authorities in question have any private capital

participation.

The authority responsible for the tendering process may lay

down conditions relating to the performance of a contract, provided

that they are indicated in the call for competition or in the

procurement documents.

For every tender or framework agreement issued under this

Part contracting authorities shall 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 public contract or

framework;

(b) where applicable, the results of the qualitative

selection;

(c) the names of the selected candidates or tenderers and

the reasons for their selection;

(d) the names of the candidates or tenderers rejected or

excluded and the reasons for their rejection or

exclusion;

(e) the name of the successful tenderer and the reasons

why its tender was selected and, where known, the

share of the contract or framework agreement which

the successful tenderer intends to subcontract to third

parties; and, where known at this point in time, the

names of the main contractor’s subcontractors, if any;

and

(f)

where applicable, the reasons why the contracting

authority has decided not to award a contract or

framework agreement.

Part IV

Types of Procurement Procedures

Various Methods of Procurement

Contracts may be awarded using the open procedure, the

restricted procedure, the competitive procedure with negotiation,

the innovation partnership, competitive dialogue, the negotiated

procedure without contract notice and design contests.

Open Procedure

In open procedures, any interested economic operator may

submit a tender in response to a call for competition.

(1)(a)A call for competition with an estimated value which

falls under the threshold established under regulation

9(1)(b) shall have a minimum time limit for the receipt

of tenders of thirty-five days from the date of

publication.

(b) When the estimated value of a call for tenders meets or

exceeds the value in Schedule 5 this call shall be made

by means of a contract notice and the time limit

mentioned in paragraph (a) shall commence from the

date on which the contract notice was sent to the

Publications Office of the European Union.

(c) The tender shall be accompanied by the information

for qualitative selection that is requested by the

authority responsible for the tendering process.

(2) Where the authorities responsible for the tendering process

have published a prior information notice, the minimum time limit

for the receipt of tenders may be shortened to fifteen days, provided

that all of the following conditions are fulfilled

(a) the prior information notice included all the

information required for the contract notice in section

I of part B of Schedule 9, in so far as that information

was available at the time the prior information notice

was published;

(b) the prior information notice was sent for publication

between thirty-five days and twelve months before the

date on which the contract notice was sent.

(3)

Where a state of urgency duly substantiated renders

impracticable the time limit laid down in sub-regulation (1), the

authority responsible for the tendering process may, fix a time limit

which shall be not less than fifteen (15) days from the date on which

the contract notice was sent to the Publications Office of the European

Union or from the date on which the tender has been published as the

case maybe.

(4) The authority responsible for the tendering process may

also reduce by five days the time limit for receipt of tenders

established in sub-regulation (1) where it accepts that tenders may

be submitted by electronic means in accordance with regulation

48(1), (2) and (10).

(5) In the case of a contract with an estimated value which is

less than the threshold established under regulation 9(1)(a), the

minimum time limit for the receipt of tenders shall be twenty days

from the date on which the tender has been published

Provided that the authority responsible for the tendering

process may reduce this time limit to fifteen (15) days in cases of

extreme urgency.

In open procedures, the authorities responsible for the

tendering process may decide to examine tenders before verifying

the absence of grounds for exclusion and the fulfilment of the

selection criteria in accordance with Part VI and regulations 217,

226, 230, 231, 232, 233, 234 and 235. Where they make use of that

possibility, they shall ensure that the verification of absence of

grounds for exclusion and of fulfilment of the selection criteria is

carried out in an impartial and transparent manner so that no

contract is awarded to a tenderer that should have been excluded

pursuant to Part VI or that does not meet the selection criteria set

out by the contracting authority.

Restricted Procedure

(1) In restricted procedures, any economic operator may

submit a request to participate in response to a call for competition

by providing the information requested by the contracting authority

in the procurement document.

(2) Where the estimated value of the restricted procedure meets

or exceeds the values established under Schedule 5, the call for

competition must include the information set out in Schedule 9,

parts B or C, as the case may be, by providing the information for

qualitative selection that is requested by the contracting authority.

(1) The minimum time limit for receipt of requests to

participate shall be thirty days from the date on which the call for

tenders has been published.

(2) Where the estimated value of the restricted procedure meets

or exceeds the values established under Schedule 5 the time limit

established above shall begin from the date when the contract

notice is sent to the Publication Office of the European Union.

Only those economic operators invited to do so by the

contracting authority following its assessment of the information

provided may submit a tender. Contracting authorities may limit the

number of suitable candidates to be invited to participate in the

procedure in accordance with regulation 237.

(1) The minimum time limit for the receipt of tenders

from the suitable candidates shall be thirty days from the date on

which the invitation to tender was sent.

(2) Where contracting authorities have published a prior

information notice, the minimum time limit for the receipt of

tenders as laid down in sub-regulation (1) may be shortened to ten

days, provided that all of the following conditions are fulfilled

(a) the prior information notice included all the

information required in section I of part B of Schedule

9, in so far as that information was available at the

time the prior information notice was published;

(b) the prior information notice was sent for publication

between thirty-five days and twelve months before the

date on which the contract notice was sent.

(3) The time limit for receipt of tenders provided for in sub-

regulation (1) may be reduced by five days where the contracting

authority accepts that tenders may be submitted by electronic

means in conformity with regulation 48(1) to (6), (10), (11) and

(12) to (14).

Where a state of urgency duly substantiated by the

contracting authorities renders impracticable the time limits laid

down in the previous regulation, they may fix

(a) a time limit for the receipt of requests to participate

which shall not be less than fifteen days from the date

on which the contract notice was sent;

(b) a time limit for the receipt of tenders which shall not

be less than ten days from the date on which the

invitation to tender was sent.

Competitive procedure with negotiation

(1) Upon being requested by the contracting authority,

t h e D i r e c t o r m a y, s u b j e c t t o a n y c o n d i t i o n s h e m a y d e e m

appropriate to impose, approve in writing the use of the

competitive procedure with negotiation in the following situations

(a) with regard to works, supplies or services fulfilling

one or more of the following criteria

(i)

the needs of the contracting authority cannot be

met without adaptation of readily available

solutions;

(ii) they include design or innovative solutions;

(iii) the contract cannot be awarded without prior

negotiations because of specific circumstances

related to the nature, the complexity or the legal

and financial make-up or because of the risks

attaching to them;

(iv) the

technical

specifications

cannot

be

established with sufficient precision by the

contracting authority with reference to a

standard, European Technical Assessment,

common technical specification or technical

reference within the meanings of regulation 2;

(b) with regard to works, supplies or services where, in

response to an open or a restricted procedure, only

irregular or unacceptable tenders are submitted. In

such situations contracting authorities shall not be

required to publish a contract notice where they

include in the procedure all of, and only, the tenderers

which satisfy the criteria set out in Part VI and

regulations 217 to 235 and which, during the prior

open or restricted procedure, submitted tenders in

accordance with the formal requirements of the

procurement procedure.

(2) A call for competition for a competitive procedure with

negotiation shall be made by means of a contract notice and any

economic operator may submit a request to participate in response

to a call for competition containing the information set out in

Schedule 9 parts B and C by providing the information for

qualitative selection that is requested by the contracting authority.

(1) In the procurement documents, contracting authorities

shall identify the subject-matter of the procurement by providing a

description of their needs and the characteristics required of the

supplies, works or services to be procured and specify the contract

award criteria. They shall also indicate which elements of the

description define the minimum requirements to be met by all

tenders.

(2) The information provided shall be sufficiently precise to

enable economic operators to identify the nature and scope of the

procurement and decide whether to request to participate in the

procedure.

(1) The minimum time limit for receipt of requests to

participate shall be thirty days from the date on which the contract

notice was sent to the Publication Office of the European Union or

from when the call for competition is published, as the case may be,

whilst the minimum time limit for the receipt of initial tenders shall

be thirty days from the date on which the invitation was sent.

(2) The provisions of regulations 121 and 122 shall apply

mutatis mutandis also to the competitive procedure with

negotiation.

Only those economic operators invited by the contracting

authority following its assessment of the information provided may

submit an initial tender which shall be the basis for the subsequent

negotiations. Contracting authorities may limit the number of

suitable candidates to be invited to participate in the procedure in

accordance with regulation 237.

(1) Subject to the provisions of sub-regulation (3),

contracting authorities shall negotiate with tenderers the initial and

all subsequent tenders submitted by them, except for the final

tenders within the meaning of sub-regulation (7) to improve the

content thereof.

(2) The minimum requirements and the award criteria shall not

be subject to negotiations.

(3) Contracting authorities may award contracts on the basis of

the initial tenders without negotiation where they have indicated, in

the contract notice or in the invitation to confirm interest, as the

case may be, that they reserve the possibility of doing so.

(4) During the negotiations, contracting authorities shall ensure

the equal treatment of all tenderers. To that end, they shall not

provide information in a discriminatory manner which may give

some tenderers an advantage over others. They shall inform all

tenderers, whose tenders have not been eliminated pursuant to sub-

regulation (6), in writing of any changes to the technical

specifications or other procurement documents, other than those

setting out the minimum requirements. Following these changes,

contracting authorities shall provide sufficient time for tenderers to

modify and re-submit amended tenders, as appropriate.

(5) In accordance with regulation 40, contracting authorities

shall not reveal to the other participants confidential information

communicated by a candidate or a tenderer participating in the

negotiations without its agreement. Such agreement shall not take

the form of a general waiver but shall be given with reference to the

intended communication of specific information.

(6) Competitive procedures with negotiation may take place in

successive stages in order to reduce the number of tenders to be

negotiated by applying the award criteria specified in the contract

notice, in the invitation to confirm interest or in another

procurement document. In the contract notice, the invitation to

confirm interest or in another procurement document, the

contracting authority shall indicate whether it will use that option.

(7) Where the contracting authority intends to conclude the

negotiations, it shall inform the remaining tenderers and set a

common deadline to submit any new or revised tenders. It shall

verify that the final tenders are in conformity with the minimum

requirements and comply with regulation 61(2), assess the final

tenders on the basis of the award criteria and award the contract in

accordance with regulations 238, 239, 240 and 243.

Innovation Partnership

(1) Upon being requested by the contracting authority the

Director may, subject to any conditions he may deem fit to impose,

approve in writing the use of the innovation partnership procedure.

(2) This request must be supported by documents

demonstrating that the need of the contracting authority cannot be

met by purchasing products, services or works already available on

the market.

In an innovation partnership procedure, any economic

operator may submit a request to participate in response to a

contract notice or call for competition, as the case may be, by

providing the information for qualitative selection that is requested

by the contracting authority.

In the procurement documents, the contracting authority

shall identify the need for an innovative product, service or works

that cannot be met by purchasing products, services or works

already available on the market. It shall indicate which elements of

this description define the minimum requirements to be met by all

tenders. The information provided shall be sufficiently precise to

enable economic operators to identify the nature and scope of the

required solution and decide whether to request to participate in the

procedure.

The contracting authority may decide to set up the

innovation partnership with one partner or with several partners

conducting separate research and development activities.

The minimum time limit for receipt of requests to

participate shall be thirty days from the date on which the contract

notice is sent or from the date when the call for competition is

published, as the case may be. Only those economic operators

invited by the contracting authority following the assessment of the

information provided may participate in the procedure. Contracting

authorities may limit the number of suitable candidates to be

invited to participate in the procedure in accordance with

regulation 237. The contracts shall be awarded on the sole basis of

the award criterion of the best price-quality ratio in accordance

with regulation 239(2).

The innovation partnership shall aim at the development of

an innovative product, service or works and the subsequent

purchase of the resulting supplies, services or works, provided that

they correspond to the performance levels and maximum costs

agreed between the contracting authorities and the participants.

The innovation partnership shall be structured in successive

phases following the sequence of steps in the research and

innovation process, which may include the manufacturing of the

products, the provision of the services or the completion of the

works. The innovation partnership shall set intermediate targets to

be attained by the partn ers and provide for p aym ent of the

remuneration in appropriate instalments.

Based on those targets, the contracting authority may

decide after each phase to terminate the innovation partnership or,

in the case of an innovation partnership with several partners, to

reduce the number of partners by terminating individual contracts,

provided that the contracting authority has indicated in the

procurement documents those possibilities and the conditions for

their use.

(1) Unless otherwise provided for in this regulation,

contracting authorities shall negotiate with tenderers the initial and

all subsequent tenders submitted by them, except for the final

tender, to improve the content thereof.

(2) The minimum requirements and the award criteria shall not

be subject to negotiations.

(3) During the negotiations, contracting authorities shall ensure

the equal treatment of all tenderers. To that end, they shall not

provide information in a discriminatory manner which may give

some tenderers an advantage over others. They shall inform all

tenderers whose tenders have not been eliminated, pursuant to sub-

regulation (5), in writing of any changes to the technical

specifications or other procurement documents other than those

setting out the minimum requirements. Following those changes,

contracting authorities shall provide sufficient time for tenderers to

modify and re-submit amended tenders, as appropriate.

(4) In accordance with regulation 40, contracting authorities

shall not reveal to the other participants confidential information

communicated by a candidate or tenderer participating in the

negotiations without its agreement. Such agreement shall not take

the form of a general waiver but shall be given with reference to the

intended communication of specific information.

(5) Negotiations during innovation partnership procedures may

take place in successive stages in order to reduce the number of

tenders to be negotiated by applying the award criteria specified in

the contract notice, in the invitation to confirm interest or in the

procurement documents. In the contract notice, the invitation to

confirm interest or in the procurement documents, the contracting

authority shall indicate whether it will use that option.

(1) In selecting candidates, contracting authorities shall

in particular apply criteria concerning the candidates’ capacity in

the field of research and development and of developing and

implementing innovative solutions.

(2) Only those economic operators invited by the contracting

authority following its assessment of the requested information

may submit research and innovation projects aimed at meeting the

needs identified by the contracting authority that cannot be met by

existing solutions.

In the procurement documents, the contracting authority

shall define the arrangements applicable to intellectual property

rights. In the case of an innovation partnership with several

partners, the contracting authority shall not, in accordance with

regulation 40, reveal to the other partners solutions proposed or

other confidential information communicated by a partner in the

framework of the partnership without that partner’s agreement.

Such agreement shall not take the form of a general waiver but

shall be given with reference to the intended communication of

specific information.

The contracting authority shall ensure that the structure of

the partnership and, in particular, the duration and value of the

different phases reflect the degree of innovation of the proposed

solution and the sequence of the research and innovation activities

required for the development of an innovative solution not yet

available on the market. The estimated value of supplies, services

or works shall not be disproportionate in relation to the investment

required for their development.

Competitive Dialogue

Upon being requested by the contracting authority, the

Director of Contracts may, subject to any conditions he may deem

appropriate to impose, approve in writing the use of the

competitive dialogue in the following instances

(a) with regard to works, supplies or services fulfilling

one or more of the following criteria

(i)

the needs of the contracting authority cannot be

met without adaptation of readily available

solutions;

(ii) they include design or innovative solutions;

(iii) the contract cannot be awarded without prior

negotiations because of specific circumstances

related to the nature, the complexity or the legal

and financial make- up or because of the risks

attaching to them;

(iv) the

technical

specifications

cannot

be

established with sufficient precision by the

contracting authority with reference to a

standard, European Technical Assessment,

common technical specification or technical

reference as defined in regulation 2;

(b) with regard to works, supplies or services where, in

response to an open or a restricted procedure, only

irregular or unacceptable tenders are submitted. In

such situations contracting authorities shall not be

required to publish a contract notice where they

include in the procedure all of, and only, the tenderers

which satisfy the criteria set out under Part VI and

regulations 217 to 235 and which, during the prior

open or restricted procedure, submitted tenders in

accordance with the formal requirements of the

procurement procedure.

In a call for completion for a competitive dialogue, any

economic operator may submit a request to participate in response

to a contract notice or call for competition, as the case may be, by

providing the information for qualitative selection that is requested

by the contracting authority.

The minimum time limit for receipt of requests to

participate shall be thirty days from the date on which the contract

notice was sent or the call for competition published as the case

may be.

Only those economic operators invited by the contracting

authority following the assessment of the information provided

may participate in the dialogue. Contracting authorities may limit

the number of suitable candidates to be invited to participate in the

procedure in accordance with regulation 237. The contract shall be

awarded on the sole basis of the award criterion of the best price-

quality ratio in accordance with regulation 239(2).

Contracting authorities shall set out their needs and

requirements in the contract notice and they shall define these

needs and requirements in that notice and, or in a descriptive

document. At the same time and in the same documents, they shall

also set out and define the chosen award criteria and set out an

indicative time-frame.

(1) Contracting authorities shall open, with the

participants selected in accordance with the relevant provisions of

regulation 61(2), Part VI and regulations 217 to 235, a dialogue the

aim of which shall be to identify and define the means best suited

to satisfying their needs. They may discuss all aspects of the

procurement with the chosen participants during this dialogue.

(2) During the dialogue, contracting authorities shall ensure

equality of treatment among all participants. To that end, they shall

not provide information in a discriminatory manner which may

give some participants an advantage over others.

(3) Subject to the provisions of regulation 40, contracting

authorities shall not reveal to the other participants solutions

proposed or other confidential information communicated by a

candidate or tenderer participating in the dialogue without its

agreement. Such agreement shall not take the form of a general

waiver but shall be given with reference to the intended

communication of specific information.

(4) Competitive dialogues may take place in successive stages

in order to reduce the number of solutions to be discussed during

the dialogue stage by applying the award criteria laid down in the

contract notice or in the descriptive document. In the contract

notice or the descriptive document, the contracting authority shall

indicate whether it will use that option.

(5) The contracting authority shall continue the dialogue until

it can identify the solution or solutions which are capable of

meeting its needs.

(6) Having declared that the dialogue is concluded and having

so informed the remaining participants, contracting authorities

shall ask each of them to submit their final tenders on the basis of

the solution or solutions presented and specified during the

dialogue. Those tenders shall contain all the elements required and

necessary for the performance of the project.

Those tenders may be clarified, specified and optimised at

t h e r e q u e s t o f t h e c o n t r a c t i n g a u t h o r i t y. H o w e v e r, s u c h

clarification, specification, optimisation or additional information

may not involve changes to the essential aspects of the tender or of

the public procurement, including the needs and requirements set

out in the contract notice or in the descriptive document, where

variations to those aspects, needs and requirements are likely to

distort competition or have a discriminatory effect.

Contracting authorities shall assess the tenders received on

the basis of the award criteria laid down in the contract notice or in

the descriptive document.

At the request of the contracting authority, negotiations

with the tenderer identified as having submitted the tender

presenting the best price-quality ratio in accordance with regulation

239 may be carried out to confirm financial commitments or other

terms contained in the tender by finalising the terms of the contract

provided this does not have the effect of materially modifying

essential aspects of the tender or of the public procurement,

including the needs and requirements set out in the contract notice

or in the descriptive document and does not risk distorting

competition or causing discrimination.

Contracting authorities may specify prizes or payments to

the participants in the dialogue.

Negotiated Procedure

(1) Upon being requested in writing by the contracting

authority the Director may, subject to any conditions he may deem

appropriate to impose, approve the use of the negotiated procedure

without prior publication for public works contracts, public supply

contracts and public service contracts as specified in the following

regulations.

PUBLIC PROCUREMENT

(2) The request made by the contracting authority must duly

substantiate the need for the negotiated procedure.

The negotiated procedure without prior publication may be

used for public works 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 works 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.

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

repetition of similar works, the basic project shall

indicate the extent of possible additional works 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 works or

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

works may be resorted to only during the three years

following the conclusion of the original contract.

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

PUBLIC PROCUREMENT

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.Public service contracts.

(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 services 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) or new services consisting in the repetition of similar

services 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.

A tender shall be considered not to be suitable where it is

irrelevant to the contract, being manifestly incapable, without

substantial changes, of meeting the contracting authority’s needs

and requirements as specified in the procurement documents.

A request for participation shall be considered not to be

suitable where the economic operator concerned is to be or may be

excluded pursuant to Part VI or does not meet the selection criteria

set out by the contracting authority pursuant to regulation 217.

Design Contest

(1) Design contests apply to

(a) contests organised as part of a procedure leading to the

award of a public service contract;

(b) contests with prizes or payments to participants.

(2) In the cases referred to in sub-regulation (1)(a), the

threshold referred to in Schedule 5 is calculated on the basis of the

estimated value net of VAT of the public service contract, including

any possible prizes or payments to participants.

(3) In the cases referred to in sub-regulation (1)(b), the

threshold refers to the total amount of the prizes and payments,

including the estimated value net of VAT of the public services

contract which might subsequently be concluded if the contracting

authority has announced its intention to award such contract.

(4) In a design contest which has an estimated value which falls

under regulation 9(1)(a), the intention to award such a contract is to

be mentioned in the procurement document and if applicable in the

advertisement published in the Gazette. In the case of a design

contest with an estimated value which falls under paragraph

9(1)(b), the intention to award such a contract must be announced

in the contest notice as established under regulation 46 and the

procurement document.

(1) When organising design contests, contracting

authorities shall apply the rules mentioned in regulations 2, 3, 4, 6

to 8, 13, 16, 26 to 32, 39, 40, 46, 48, 57, 58, 157 to 161 and Part IX.

(2) The admission of participants to design contests shall not

be limited

(a) by reference to the territory or part of the territory of a

Member State;

(b) on the grounds that, they would be required to be

either natural or legal persons.

(3) Where design contests are restricted to a limited number of

participants, the contracting authorities shall lay down clear and

non-discriminatory selection criteria. In any event, the number of

candidates invited to participate shall be sufficient to ensure

genuine competition.

The jury shall be composed exclusively of natural persons

who are independent of participants in the contest. Where a

particular professional qualification is required from participants in

a contest, at least a third of the members of the jury shall have that

qualification or an equivalent qualification.

(1) The jury shall be autonomous in its decisions or

opinions.

(2) The jury shall examine the plans and projects submitted by

the candidates anonymously and solely on the basis of the criteria

indicated in the contest notice.

(3) The jury shall record its ranking of projects in a report,

signed by its members, made according to the merits of each

project, together with its remarks and any points that may need

clarification.

(4) Anonymity shall be observed until the jury has reached its

opinion or decision.

(5) Candidates may be invited, if need be, to answer questions

that the jury has recorded in the minutes to clarify any aspect of the

projects.

(6) Complete minutes shall be drawn up of the dialogue

between jury members and candidates.

Reserved Contracts and Contracts For Social

and Other Specific Services

(1) A contracting authority may reserve the right to

participate in public procurement 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 contracts to be performed in the context of

sheltered employment programmes, provided that at least 30% of

t h e e m p l o y e e s o f t h o se w o r k s ho p s , e c o n o m i c o p e r a t o r s o r

programmes are disabled or disadvantaged workers.

(2) The call for competition for reserved contracts shall make

reference to this regulation.

Public contracts for social and other specific services listed

in Schedule 14 shall be awarded in accordance with the following

regulations under this Part.

(1) Contracting authorities intending to award a public

contract for the services referred to in regulation 162 shall make

known their intention by any of the following means

(a) for public contracts with an estimated value which

meets or exceed the threshold established under

paragraph (d) of Schedule 5

(i)

by means of a contract notice, which shall

contain the information referred to in Schedule

9, Part H, in accordance with the standard forms

referred to in regulation 44;

Provided that this sub-paragraph shall not apply

where a negotiated procedure without prior

publication could have been used in conformity

with regulation 154 for the award of a public

service contract; or

(ii) by means of a prior information notice, which

shall be published continuously and contain the

information set out in Schedule 9, Part I. The

prior information notice shall refer specifically

to the types of services that will be the subject of

the contracts to be awarded. It shall indicate that

the contracts will be awarded without further

publication and invite interested economic

operators to express their interest in writing.

(b) for public contracts with an estimated value which is

less than the threshold mentioned under paragraph (d)

of Schedule 5 by publishing it in the government’s e-

procurement system.

(2) In respect to public contracts with an estimated value which

meets or exceed the threshold established under paragraph (d) of

Schedule 5 contracting authorities that have awarded a public

contract for the services referred to in regulation 162 shall make

known the results of the procurement procedure by means of a

contract award notice, which shall contain the information referred

to in Schedule 9, Part J, in accordance with the standard forms

referred to in regulation 44. They may, however, group such notices

on a quarterly basis. In that case, they shall send the grouped

notices within thirty days of the end of each quarter.

(3) The notices referred to in these regulations shall be

published in accordance with regulation 44.

(1) Contracting authorities shall determine in the

respective procurement documents the procedures that are going to

be applied in connection with the award of a call for tenders subject

to what is stated in the regulations covered by this Part.

(2) Contracting authorities shall ensure that the procedures

mentioned in sub-regulation (1) adequately cater for the principles

of transparency and equal treatment of economic operators.

(3) In implementing sub-regulations (1) and (2) contracting

authorities may take into account the specificities of the services in

question.

(4) Contracting authorities shall ensure that the procedures

identified in sub-regulation (1) shall be reasonable and

proportion ate, in particular th e t ime lim its allow ed for the

submission of the offer shall be sufficient to allow bidders to

submit an offer.

(5) In establishing the procedures mentioned in sub-regulation

(1) contracting authorities may, subject to the provisions of the

regulations established under this Part, also decide to apply the

regulations established for other procurement procedures.

(6) In relation to the award of contracts that are the subject of

these regulations, contracting authorities may take into account the

need to ensure quality, continuity, accessibility, affordability,

availability and comprehensiveness of the services, the specific

needs of different categories of users, including disadvantaged and

vulnerable groups, the involvement and empowerment of users and

innovation.

(7) Contracting authorities may also provide that the choice of

the service provider shall be made on the basis of the tender

presenting the best price-quality ratio, taking into account quality

and sustainability criteria for social services.

(1) Contracting authorities may reserve the right for

organisations to participate in procedures for the award of public

contracts exclusively for those health, social and cultural services

referred to in regulation 162, which are covered by CPV codes

75121000-0, 75122000-7, 75123000-4, 79622000-0, 79624000-4,

79625000-1, 80110000-8, 80300000-7, 80420000-4, 80430000-7,

80511000-9, 80520000-5, 80590000-6, from 85000000-9 to

85323000-9, 92500000-6, 92600000-7, 98133000-4 and 98133110-

8. (2) An organisation referred to in sub-regulation (1) shall fulfil

all of the following conditions

(a) its objective is the pursuit of a public service mission

linked to the delivery of the services referred to in sub-

regulation (1);

(b) profits are reinvested with a view to achieving the

organisation’s objective. Where profits are distributed

or redistributed, this should be based on participatory

considerations;

(c) the structures of management or ownership of the

organisation performing the contract are based on

employee ownership or participatory principles, or

require the active participation of employees, users or

stakeholders; and

(d) the organisation has not been awarded a contract for

the services concerned by the contracting authority

concerned pursuant to this regulation within the past

three years.

(3) The maximum duration of the contract shall not be longer

than three years.

(4) The call for competition issued under this Part shall make

reference to this regulation.

Procurement by Entities referred to in Schedule 3

For the purposes of this Part, contracting authorities listed

under Schedule 3 shall administer and determine their own

procurement procedure and thus do not require the prior approval

of the Director but the written consent by the Head of that same

contracting authority shall suffice.

Part V

Aggregation of Procurement

Framework Agreements

The authority responsible for the tendering process may

conclude framework agreements, provided that they apply the

procedures provided for in these regulations.

The term of a framework agreement shall not exceed four

years, save in exceptional cases duly justified, in particular by the

subject of the framework agreement.

These procedures may be applied only between those

contracting authorities who are clearly identified for this purpose in

the call for competition or the invitation to confirm interest and

those economic operators party to the framework agreement as

concluded.

Contracts based on a framework agreement may under no

circumstances entail substantial modifications to the terms laid

down in that framework agreement, in particular in the case

referred to in regulations 171 and 172.

Where a framework agreement is concluded with a single

economic operator, contracts based on that agreement shall be

awarded within the limits of the terms laid down in the framework

agreement.

For the award of the contracts identified in regulation 173,

the authority responsible for the tendering process may consult the

economic operator party to the framework agreement in writing,

requesting it to supplement its tender as necessary.

(1) Where a framework agreement is concluded with

more than one economic operator, that framework agreement shall

be performed in one of the following ways

(a) following the terms and conditions of the framework

agreement, without reopening competition, where it

sets out all the terms governing the provision of the

works, services and supplies concerned and the

objective conditions for determining which of the

economic operators, party to the framework

agreement, shall perform them; the latter conditions

shall be indicated in the procurement documents for

the framework agreement;

(b) where the framework agreement sets out all the terms

governing the provision of the works, services and

supplies concerned, partly without reopening of

competition in accordance with paragraph (a) and

partly with reopening of competition amongst the

economic operators parties to the framework

agreement in accordance with paragraph (c), where

this possibility has been stipulated by the contracting

authorities in the procurement documents for the

framework agreement

Provided that the choice of whether specific works,

supplies or services shall be acquired following a

reopening of competition or directly on the terms set

out in the framework agreement shall be made

pursuant to objective criteria, which shall be set out in

the procurement documents for the framework

agreement. These procurement documents shall also

specify which terms may be subject to reopening of

competition

Provided further that the possibilities established

under paragraph (b) shall also apply to any lot of a

framework agreement for which all the terms

governing the provision of the works, services and

supplies concerned are set out in the framework

agreement, regardless of whether all the terms

governing the provision of the works, services and

supplies concerned under other lots have been set out;

(c) where not all the terms governing the provision of the

works, services and supplies are laid down in the

framework agreement, through reopening competition

amongst the economic operators parties to the

framework agreement.

(2) The competitions referred to in sub-regulation (1)(b) and

(c) shall be based on the same terms as applied for the award of the

framework agreement and, where necessary, more precisely

formulated terms, and, where appropriate, other terms referred to in

the procurement documents for the framework agreement, in

accordance with the following procedure

(a) for every contract to be awarded, contracting

authorities shall consult in writing the economic

operators capable of performing the contract;

(b) The authorities responsible for the tendering process

shall fix a time limit which is sufficiently long to allow

tenders for each specific contract to be submitted,

taking into account factors such as the complexity of

the subject-matter of the contract and the time needed

to send in tenders;

(c) tenders shall be submitted in writing, and their content

shall not be opened until the stipulated time limit for

reply has expired;

(d) the authorities responsible for the tendering process

shall award each contract to the tenderer that has

submitted the best tender on the basis of the award

criteria set out in the procurement documents for the

framework agreement.

Dynamic Purchase Systems

(1) For commonly used purchases the characteristics of

which, as generally available on the market, meet the requirements

of the contracting authorities, contracting authorities may use a

dynamic purchasing system.

(2)

Repealed by Legal Notice 56 of 2021.

(3) The dynamic purchasing system shall be operated as a

completely electronic process, and shall be open throughout the

period of validity of the purchasing system to any economic

operator that satisfies the selection criteria.

(4) It may be divided into categories of products, works or

services that are objectively defined on the basis of characteristics

of the procurement to be undertaken under the category concerned.

Such characteristics may include reference to the maximum

allowable size of the subsequent specific contracts or to a specific

geographic area in which subsequent specific contracts will be

performed.

(1) In order to procure under a dynamic purchasing

system, the authorities responsible for the tendering process shall

follow the rules of the restricted procedure as applicable.

(2) All the candidates satisfying the selection criteria shall be

admitted to the system, and the number of candidates to be

admitted to the system shall not be limited in accordance with

regulation 237. Where contracting authorities have divided the

system into categories of products, works or services in accordance

with regulation 174(3), they shall specify the applicable selection

criteria for each category.

(3)

Notwithstanding the provisions of regulations 118 to 122

(a) the minimum time limit for receipt of requests to

participate shall be thirty days from the date on which

the contract notice is sent to the Publication Office of

the European Union or from when the call for

competition is published as the case maybe. No further

time limits for receipt of requests to participate shall

apply once the invitation to tender for the first specific

procurement under the dynamic purchasing system has

been sent;

(b) the minimum time limit for receipt of tenders shall be

at least ten days from the date on which the invitation

to tender is sent and regulation 121(2) and (3) shall not

apply.

All communications in the context of a dynamic purchasing

system shall only be made by electronic means in accordance with

regulation 48(1) to (6), (8), (10), (11) and (12).

(1) For the purposes of awarding contracts under a

dynamic purchasing system, the authorities responsible for the

tendering process shall

(a) publish a call for competition making it clear that a

dynamic purchasing system is involved;

(b) indicate in the procurement documents at least the

nature and estimated quantity of the purchases

envisaged, as well as all the necessary information

concerning the dynamic purchasing system, including

how the dynamic purchasing system operates, the

electronic equipment used and the technical

connection arrangements and specifications;

(c) indicate any division into categories of products,

works or services and the characteristics defining

them;

(d) offer unrestricted and full direct access, as long as the

system is valid, to the procurement documents in

conformity with regulation 49.

(2) The authorities responsible for the tendering process shall

give any economic operator, throughout the entire period of

validity of the dynamic purchasing system, the possibility of

requesting to participate in the system under the conditions referred

to in regulation 175.

(3) Contracting authorities shall finalise their assessment of the

requests identified under sub-regulation (2) in accordance with the

selection criteria within ten working days following their receipt.

(4) The deadline established in sub-regulation (3) may be

prolonged to fifteen working days in individual cases where

justified, in particular because of the need to examine additional

documentation or to otherwise verify whether the selection criteria

are met.

(5) Notwithstanding the provisions of sub-regulations (2), (3)

and (4), as long as the invitation to tender for the first specific

procurement under the dynamic purchasing system has not been

sent, the authorities responsible for the tendering process may

extend the evaluation period provided that no invitation to tender is

issued during the extended evaluation period. The authorities

responsible for the tendering process shall indicate in the

procurement documents the length of the extended period that they

intend to apply.

(6) The authorities responsible for the tendering process shall

inform the economic operator concerned at the earliest possible

opportunity of whether or not it has been admitted to the dynamic

purchasing system.

(7) The authorities responsible for the tendering process shall

invite all admitted participants to submit a tender for each specific

procurement under the dynamic purchasing system, in accordance

with regulation 50. Where the dynamic purchasing system has been

divi ded into categ ori es of works, pro duct s or services, th e

authorities responsible for the tendering process shall invite all

participants having been admitted to the category corresponding to

the specific procurement concerned to submit a tender.

(8) They shall award the contract to the tenderer that submitted

the best tender on the basis of the award criteria set out in the

contract notice for the dynamic purchasing system. Those criteria

may, where appropriate, be formulated more precisely in the

invitation to tender.

(1) The authorities responsible for the tendering process

may, at any time during the period of validity of the dynamic

purchasing system, require admitted participants to submit a

renewed and updated self-declaration as provided for in regulations

225, 226 and 227, within five working days from the date on which

that request is transmitted.

(2) The provisions of regulation 229 shall apply throughout the

entire period of validity of the dynamic purchasing system.

The authorities responsible for the tendering process shall

indicate the period of validity of the dynamic purchasing system in

the call for competition. They shall notify the Commission of any

change in the period of validity, using the following standard

forms

(a) where the period of validity is changed without

terminating the system, the form used initially for the

call for competition for the dynamic purchasing

system;

(b) where the system is terminated, a contract award

notice referred to in regulation 43.

No charges may be billed prior to or during the period of

validity of the dynamic purchasing system to the economic

operators interested in or party to the dynamic purchasing system.

Electronic Auctions

The authorities responsible for the tendering process may

use electronic auctions, in which new prices, revised downwards,

and, or new values concerning certain elements of tenders are

presented.

(1) The electronic auction shall be structured as a

repetitive electronic process, which occurs after an initial full

evaluation of the tenders, enabling them to be ranked using

automatic evaluation methods.

(2) Certain public service contracts and certain public works

contracts having as their subject-matter intellectual performances,

such as the design of works, which cannot be ranked using

automatic evaluation methods, shall not be the object of electronic

auctions.

(1) In open or restricted procedures or competitive

procedures with negotiation with an estimated value falling under

regulation 9(1)(b), the authorities responsible for the tendering

process may decide that the award of a public contract shall be

p r e c e d e d b y a n el e c t r o n i c a u c t i o n w h e n t h e co n t e n t o f t he

procurement documents, in particular the technical specifications,

can be established with precision.

(2) In the same circumstances, an electronic auction may be

held on the reopening of competition among the parties to a

framework agreement as provided for in regulation 173(2)(b) or (c)

and on the opening for competition of contracts to be awarded

under the dynamic purchasing system.

The electronic auction shall be based on one of the

following elements of the tenders

(a) solely on prices where the contract is awarded on the

basis of price only;

(b) on prices and, or on the new values of the features of

the tenders indicated in the procurement documents

where the contract is awarded on the basis of the best

using a cost-effectiveness approach.

The authorities responsible for the tendering process which

decide to hold an electronic auction shall state that fact in the

contract notice or in the invitation to confirm interest as the case

maybe. The procurement documents shall include at least the

information set out in Schedule 10.

Before proceeding with an electronic auction, contracting

authorities shall make a full initial evaluation of the tenders in

accordance with the award criterion or criteria and with the

weighting fixed for them.

(1) A tender shall be considered admissible where it has

been submitted by a tenderer, who has not been excluded pursuant

to Part VI and who meets the selection criteria, and whose tender is

in conformity with the technical specifications without being

irregular or unacceptable or unsuitable.

(2) In particular, tenders which do not comply with the

procurement documents, which were received late, where there is

evidence of collusion or corruption, or which have been found by

the contracting authority to be abnormally low, shall be considered

as being irregular. In particular tenders submitted by tenderers that

do not have the required qualifications, and tenders whose price

exceeds the contracting authority’s budget as determined and

documented prior to the launching of the procurement procedure

shall be considered as unacceptable.

(3) A tender shall be considered not to be suitable where it is

irrelevant to the contract, being manifestly incapable, without

substantial changes, of meeting the contracting authority’s needs

and requirements as specified in the procurement documents. A

request for participation shall be considered not to be suitable

where the economic operator concerned is to be or may be excluded

pursuant to Part VI or does not meet the selection criteria set out by

the contracting authority pursuant to regulation 217.

(1) All tenderers that have submitted admissible tenders

shall be invited simultaneously to participate in the electronic

auction using, as of the specified date and time, the connections in

accordance with the instructions set out in the invitation. The

electronic auction may take place in a number of successive phases.

The electronic auction shall not start sooner than two working days

after the date on which invitations are sent out.

(2) The invitation shall be accompanied by the outcome of a

full evaluation of the relevant tender, carried out in accordance

with the weighting provided for in regulation 239(7).

(3) The invitation shall also state the mathematical formula to

be used in the electronic auction to determine the automatic re-

rankings on the basis of the new prices and, or new values

submitted. Except where the most economically advantageous offer

is identified on the basis of price alone, that formula shall

in c o r po r a t e th e w e i gh ti n g o f a ll t h e cr i te ri a e s t a b l ish e d to

determine the most economically advantageous tender, as indicated

in the notice used as a means of calling for competition or in other

procurement documents. For that purpose, any ranges shall,

however, be reduced beforehand to a specified value.

(4) Where variants are authorised, a separate formula shall be

provided for each variant.

Throughout each phase of an electronic auction the

authorities responsible for the tendering process shall

instantaneously communicate to all tenderers at least sufficient

information to enable them to ascertain their relative rankings at

any moment. They may, where this has been previously indicated,

communicate other information concerning other prices or values

submitted. They may also at any time announce the number of

participants in that phase of the auction. In no case, however, may

they disclose the identities of the tenderers during any phase of an

electronic auction.

(1) The authorities responsible for the tendering process

shall close an electronic auction in one or more of the following

manners

(a) at the previously indicated date and time;

(b) when they receive no more new prices or new values

which meet the requirements concerning minimum

differences, provided that they have previously stated

the time which they will allow to elapse after receiving

the last submission before they close the electronic

auction; or

(c) when the previously indicated number of phases in the

auction has been completed.

(2) Where the authorities responsible for the tendering process

intend to close an electronic auction in accordance with sub-

regulation (1)(c) possibly in combination with the arrangements

laid down in sub-regulation (1)(b), the invitation to take part in the

auction shall indicate the timetable for each phase of the auction.

(3) After closing an electronic auction the authorities

responsible for the tendering process shall award the contract in

accordance with the provisions of regulation 239 on the basis of the

results of the electronic auction.

Part VI

Exclusion and Black Listing of Economic Operators

General Prohibition

(1) No economic operator or sub-contractor shall be

given a public contract if he is subject to any of the exclusion or

black listing grounds mentioned under this Part.

(2) If, during a procurement process, a sub-contractor is

excluded or black listed, the authority responsible for the tendering

process or the Director shall require that the economic operator

replaces the excluded or black listed subcontractor.

(3) If the economic operator does not replace the sub-

contractor within the time-frame given in writing by the authority

responsible for the tendering process or Director, the tender of that

economic operator shall be automatically excluded from the award.

Exclusion of Economic Operators

(1) The authority responsible for the tendering process

shall exclude an economic operator from participation in a

procurement procedure where it has established or is otherwise

made aware that such an economic operator has been the subject of

a conviction by final judgment having the nature of a res judicata

for one of the following reasons

(a) participation in a criminal organisation, as defined in

Article 2 of Council Framework Decision 2008/841/

JHA or an equivalent offence under Maltese law or as

defined in the national law of the economic operator;

(b) corruption, as defined in Article 3 of the Convention

on the fight against corruption involving officials of

the European Communities or officials of Member

States of the European Union and Article 2(1) of

Council Framework Decision 2003/568/JHA or an

equivalent offence under Maltese law or as defined in

the national law of the economic operator;

(c) fraud within the meaning of Article 1 of the

Convention on the protection of the European

Communities’ financial interests or an equivalent

offence under Maltese law or as defined in the national

law of the economic operator;

(d) terrorist offences or offences linked to terrorist

activities, as defined in Articles 1 and 3 of Council

Framework Decision 2002/475/JHA respectively, or

inciting or aiding or abetting or attempting to commit

an offence, as referred to in Article 4 of that

Framework Decision or an equivalent offence under

Maltese law or as defined in the national law of the

economic operator;

(e) money laundering or terrorist financing, as defined in

Article 1 of Directive 2005/60/EC of the European

Parliament and of the Council or an equivalent offence

under Maltese law or as defined in the national law of

the economic operator;

(f)

child labour and other forms of trafficking in human

beings as defined in Article 2 of Directive 2011/36/EU

of the European Parliament and of the Council or an

equivalent offence under Maltese law or as defined in

the national law of the economic operator.

(2) The exclusion of the economic operator shall also operate

and apply where the person convicted by final judgment is a

member of the administrative, management or supervisory body of

that economic operator or has powers of representation, decision or

control therein.

(3) Without prejudice to the possibility mentioned in regulation

195, the period of exclusion for the grounds identified under this

regulation shall be of five years starting from the date when the

judgment has become final.

(1) An economic operator shall likewise be excluded

from participation in a procurement procedure where the authority

responsible for the tendering process is aware that the economic

operator is in breach of its obligations relating to the payment of

taxes or social security contributions and where this has been

established by a local or foreign judicial or administrative decision

having final and binding effect.

(2) The authorities responsible for the tendering process are

also entitled to exclude an economic operator from participation in

a procurement procedure if they can demonstrate by any

appropriate means that the economic operator is in breach of its

obligations relating to the payment of taxes or social security

contributions, even in the absence of a local or foreign judicial or

administrative decision.

(3) The term ‘appropriate means’ under this regulation includes

any certificate, declaration or documentation issued by a competent

entity which demonstrate that the economic operator is in breach of

its obligations relating to the payment of taxes and, or social

security contributions.

(4) The exclusion mentioned under this regulation shall no

longer apply if the economic operator fulfils his obligations by

paying or by entering into a binding arrangement with a view to

paying the taxes or social security contributions due, including,

where applicable, any interest accrued or fines.

A contract shall also not be awarded to an economic

operator who, during the procurement procedure for that contract

(a) is bankrupt or is the subject of insolvency or winding-

up proceedings, where its assets are being

administered by a liquidator or by the court, where it is

in an arrangement with creditors, where its business

activities are suspended or it is in any analogous

situation arising from a similar procedure under

national laws and regulations;

(b) is subject to a conflict of interests as referred to under

the definition in regulation 2 which cannot be

effectively remedied by other less intrusive measures;

(c) has been involved in the preparation of the

procurement procedure, unless such an exclusion

cannot be remedied by other, less intrusive measures.

(1) An economic operator that is in one of the situations

referred to in regulations 192 and 194 may provide, in his offer or

bid, evidence to the effect that he took sufficient measures to

demonstrate his reliability despite the existence of a relevant

ground for exclusion. If such evidence at evaluation stage is

considered as sufficient by the authority responsible for the

tendering process, the economic operator concerned shall not be

excluded from the procurement procedure.

(2) The economic operator shall be deemed to have shown his

reliability if he proves that he has paid or undertaken to pay

compensation in respect of any damage caused by the criminal

offence or misconduct, clarified the facts and circumstances in a

comprehensive manner by actively collaborating with the

investigating authorities and taken concrete technical,

organisational and personnel measures that are appropriate to

prevent further criminal offences or misconduct.

(3) The measures taken by the economic operators shall be

evaluated taking into account the gravity and particular

circumstances of the criminal offence or misconduct. Where the

measures are considered to be insufficient, the economic operator

shall receive a statement of the reasons for that decision.

(4)

The economic operator shall not be entitled to make use of

the p ossibil ity to rem ove t he excl usion as provid ed in th is

r e g u l a t i on i f t h e p e r i o d o f e xc l u s i o n f r o m p a r t i c i p a t i n g i n

procurement award procedures has been established by a final

judgment.

The authority responsible for the tendering process shall

exclude economic operators at any time during the procedure

leading to the award of the contract when it transpires out that the

economic operator is, in view of acts committed or omitted either

before or during the procedure, in one of the situations referred to

in regulations 192, 193 and 194.

On an exceptional basis only, the authority responsible for

the tendering process may with the prior approval in writing of the

Minister dispense from any exclusion mentioned under this Part for

overriding reasons relating to the public interest.

Any economic operator who feels aggrieved by a decision

to exclude him from participating in a procurement procedure may

file an objection before the Public Contracts Review Board in the

same manner as provided for in regulation 270.

Black Listing by the Director

The Director is empowered to black list an economic

operator from participating in a procurement procedure where

(a) the economic operator has been declared guilty by any

court or tribunal of an offence relating to labour law

including those found in the Employment and

Industrial Relations Act or any subsidiary legislation

made under that Act; or

(b) the economic operator has been convicted of an

offence concerning his professional conduct by a

judgment which has the force of res judicata in

accordance with the laws of Malta, which renders its

integrity questionable; or

(c) the Director has sufficiently plausible indications to

conclude that the economic operator has entered into

agreements with other economic operators aimed at

distorting competition; or

(d) the Director has been informed in writing by a

contracting authority that an economic operator has

shown significant or persistent deficiencies in the

performance of a substantive requirement in a public

contract, or a public concession contract, which led to

early termination of that contract, damages or other

comparable sanctions; or

(e) the economic operator has been declared guilty by any

court or tribunal of serious misrepresentation in

supplying the information required for the verification

of the absence of grounds for exclusion or the

fulfilment of the selection criteria, has withheld such

information or is not able to submit the supporting

documents required pursuant to regulation 226;

(f)

the economic operator has undertaken to unduly

influence the decision-making process of the

contracting

authority,

to

obtain

confidential

information that may confer upon it undue advantages

in the procurement procedure or to negligently provide

misleading information that may have a material

influence on decisions concerning exclusion, award or

selection;

(g) it can demonstrated by any appropriate means that in the

execution of public contracts the economic operator is in

violation of 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 13.

The Director shall inform the economic operator in

question of his decision to black list him by means of a registered

letter or judicial letter as provided for under the Code of Organization

and Civil Procedure detailing the appropriate grounds.

(1) Any economic operator who feels aggrieved by such a

decision may file an objection before the Commercial Sanctions

Tribunal as provided in regulation 205.

(2) In default of an objection by the economic operator the

decision of the Director shall be final and the black listing period

shall be effective for two years from the date of the decision. In the

event of an objection, the decision to black list shall become final

from the date when the objection has been finally decided by the

Commercial Sanctions Tribunal or the Court of Appeal, as the case

may be.

(1) An economic operator may, before the Commercial

Sanctions Tribunal, use as a defence against his black listing, the

a rg u m e n t t h a t h e h as t ak e n m e a su r e s t h at a r e su ff i ci e n t t o

demonstrate his reliability despite the existence of a relevant

g ro und f or bl ack l isti ng . If such ev iden ce i s con si dered as

sufficient, the economic operator concerned shall not be black

listed from the procurement procedure.

(2) The economic operator shall prove that he has paid or

undertaken to pay compensation in respect of any damage caused

by the criminal offence or misconduct, clarified the facts and

circumstances in a comprehensive manner by actively collaborating

with the investigating authorities and taken concrete technical,

organisational and personnel measures that are appropriate to

prevent further criminal offences or misconduct.

(3) The measures taken by the economic operators shall be

evaluated by the Commercial Sanctions Tribunal taking into

account the gravity and particular circumstances of the criminal

offence or misconduct. Where the Commercial Sanctions Tribunal

shall deem the measures as insufficient, it will include the reasons

for such a decision in its judgment.

(1) An economic operator which has been black listed by

a final judgment from participating in procurement procedures

shall not be entitled to make use of the possibility provided for

under regulation 202 during the period of exclusion resulting from

that judgment.

(2) Once the economic operator has been black listed he shall

be excluded from the award of any public contract or any contract,

quotation or direct-contract for the period of his black listing.

The economic operator who has been informed by the

Director that he will be black listed can file an appeal before the

Commercial Sanctions Tribunal.

(1) The appeal shall be filed within ten days from the date

in which the or registered letter or judicial letter identified under

regulation 200 shall be notified to the appellant.

(2) The appeal shall be valid only if accompanied by a deposit

of four hundred euro (€400).

(3) The Secretary of the Tribunal shall immediately serve a

copy of the appeal to the Director thereby informing the latter that

an appeal had been filed.

(4) The appeal shall also be affixed to the notice-board of the

Tribunal.

(5) The Director may, within ten days from the day on which

the appeal is notified to him, file a written reply. The reply shall

also be affixed to the notice-board of the Tribunal.

(6) The Director shall forward to the chairman of the Tribunal

all documentation pertaining to the black listing of the appellant.

(7)

The tribunal shall then set a date for the oral hearing.

(8) When the oral hearing is concluded, the Tribunal, 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 in which the written pleadings are

deemed to be closed

Provided that for serious and justified reasons expressed in

writing by means of an order notified to all the parties, the Tribunal

may postpone the judgment for a later period.

(9) The secretary of the board shall keep a record of the

grounds of each adjournment and of everything done in each

sitting.

Black Listing by the Director of Employment and Industrial

Relations

(1) The Director of Employment and Industrial Relations

shall request the Commercial Sanctions Tribunal to black list a

person, whether natural or legal, from participating in procedures

for the award of public contracts if such person

(a) has failed to provide his employees with a written

contract of service; or

(b) has failed to provide his employees with a detailed pay

slip containing all relevant details including amount

paid, normal hours worked, overtime hours, hours

worked on Sundays and public holidays, hours availed

of a leave or sick leave, a breakdown of bonuses and

allowances as well as deductions made; or

(c) has failed to deposit wages or salaries by direct

payment in the employee’s bank account; or

(d) has failed to provide the relevant bank statements of

wages and salaries’ deposit and copies of the detailed

payslips, which are to be made available as and when

required by the Director of Employment and Industrial

Relations; or

(e) has subcontracted a public contract to another person

employing the same employees of the principal

contractor to carry out the same or similar duties for

the execution of the said public contract.

(2) When the Director of Employment and Industrial Relations

requests to black list a legal person, apart from the legal person, he

may also request the black listing of natural persons who represent

that legal person.

It shall be the function of the Director of Employment and

Industrial Relations to ensure that the conditions mentioned in

regulation 206 are observed by all persons.

With regards to instances provided for under regulation

206, the Director of Employment and Industrial Relations shall

proceed for the black listing of a person before the Commercial

Sanctions Tribunal by means of an application.

(1) The application shall contain a statement of the facts

and the grounds of the cause for black listing. It shall also contain a

detailed report on the findings of the investigations carried out by

the Director of Employment and Industrial Relations or a copy of

the decision given by the Court.

(2) The application and all the documents supporting the

application shall be served on the defendant by or registered letter

judicial letter, who shall have twenty days to file a reply. The reply

shall be accompanied by a deposit of four hundred euro (€400)

payable to the Secretary of the Commercial Sanctions Tribunal and

shall contain all documentation in support of the reply.

(3) If the registered letter or judicial letter mentioned in sub-

regulation (2) is not notified to the defendant, it shall be the

responsibility of the Director of Employment and Industrial

Relations to cause a copy of the application and all the documents

attached with the application to be served on the defendant, and

su ch service shal l be eff ected through the mode of service

established in article 187 of the Code of Organization and Civil

Procedure.

The fees mentioned in paragraph 6 of Tariff A of Schedule A of

the Code of Organization and Civil Procedure shall apply to such

service.

(4) The defendant shall cause a copy of the reply to be served

on the Director of Employment and Industrial Relations.

(5) The written pleadings shall be deemed to be closed upon

the expiration of the time referred to in sub-regulation (3).

(1) The Secretary of the Commercial Sanctions Tribunal

shall notify the Director of Employment and Industrial Relations and

the defendant of the date on which the first hearing will be held. The

notice of hearing shall be communicated by the Secretary to the

defendant together with the application and documents mentioned in

sub-regulation (2) of regulation 209.

(2) When the hearing is concluded, the Commercial Sanctions

Tribunal, if it does not deliver decision on the same day, shall

reserve decision for the earliest possible date to be fixed for the

purpose, but not later than four months from the date when the

written pleadings are deemed to be closed

Provided that, for serious and justified reasons expressed in

writing by means of an order notified to all the parties, the

Commercial Sanctions Tribunal may postpone the judgment to a

later period.

After evaluating all the evidence and after considering all

submissions put forward by the parties, the Commercial Sanctions

Tribunal shall decide whether to accede or reject to the request

made by the Director of Employment and Industrial Relations for

the black listing of the defendant

Provided that the Commercial Sanctions Tribunal may, after

considering measures taken by the defendant to remedy the

situation and after taking into account the gravity and particular

circumstances of the misconduct, decide to deliver a warning to the

defendant, instead of black listing the defendant.

If the Commercial Sanctions Tribunal decides for the black

listing of the defendant, the black listing period shall be between

six months and one year

Provided that where the defendant repeats the misconduct

the black listing period shall be between one and three years.

In its decision the Commercial Sanctions Tribunal shall

recommend as to whether any deposit, or part thereof, submitted by

defendant should be refunded.

The final decision of the Commercial Sanctions Tribunal

may be appealed before the Court of Appeal and such process shall

be regulated mutatis mutandis as provided in regulations 284, 285,

286, 288 and 290.

(1) The effects of black listing shall commence on the

lapse of two months from the day when the decision of the black

listing has become final.

(2) All existing contracts signed by the central government

authority, contracting authorities and bodies governed by public

law with persons who have been black listed in terms of regulation

207 shall be terminated ipso jure without any compensation for

actual and future losses from the date on which the decision

regarding the black listing becomes final.

Offences

Any person who enters into a contract, whether in his own

name or on behalf of others, in contravention of any of the

provisions of this Part, and any person who induces any other

person to enter into or appear on any such contract as aforesaid or

the making thereof, or who aids or abets any of the aforesaid acts,

shall be guilty of an offence and shall be liable on conviction to a

fine (multa) not exceeding two thousand euro (€2,000).

Part VII

Choice of participants and award of contracts

Selection Criteria

(1) Selection criteria may relate to

(a) suitability to pursue the professional activity;

(b) economic and financial standing;

(c) technical and professional ability.

(2) Contracting authorities may only impose criteria referred to

under this regulation on economic operators as requirements for

participation. Any of the requirements imposed shall be limited to

those that are appropriate to ensure that a candidate or tenderer has

the legal and financial capacities and the technical and professional

abilities to perform the contract to be awarded. All requirements

shall be related and proportionate to the subject-matter of the

contract.

(3) As to the suitability to pursue the professional activity,

contracting authorities may require economic operators to be

enrolled in one of the professional or trade registers, as described in

Annex XI of Directive 2014/24/EU.

(4) In procurement procedures for services, in so far as

economic operators have to possess a particular authorisation or to

be members of a particular organisation in order to be able to

perform in their country of origin the service concerned, the

contracting authority may require them to prove that they hold such

authorisation or membership.

As to economic and financial standing, contracting

authorities may impose requirements ensuring that economic

operators possess the necessary economic and financial capacity to

perform the contract. For that purpose, contracting authorities may

require, in particular, that economic operators have a certain

minimum yearly turnover, including a certain minimum turnover in

the area covered by the contract. In addition, contracting authorities

may require that economic operators provide information on their

annual accounts showing the ratios, for instance, between assets

and liabilities. They may also require an appropriate level of

professional risk indemnity insurance.

(1) The minimum yearly turnover that economic

operators are required to have shall not exceed two times the

estimated contract value, except in duly justified cases such as

relating to the special risks attached to the nature of the works,

services or supplies. The contracting authority shall indicate the

main reasons for such a requirement in the procurement documents

or the individual report referred to in regulations 113 or 241, as the

case may be.

(2) The ratio, for instance, between assets and liabilities may

be taken into consideration where the contracting authority

specifies the methods and criteria for such consideration in the

procurement documents. Such methods and criteria shall be

transparent, objective and non-discriminatory.

Where a procurement document including a tender is

divided into lots, regulations 217 to 224 shall apply in relation to

each individual lot. However, the contracting authority may set the

minimum yearly turnover that economic operators are required to

have by reference to groups of lots in the event that the successful

tenderer is awarded several lots to be executed at the same time.

Where contracts based on a framework agreement are to be

awarded following a reopening of competition, the maximum

yearly turnover requirement referred to in regulation 219(1) shall

be calculated on the basis of the expected maximum size of specific

contracts that will be performed at the same time, or, where it is not

known, on the basis of the estimated value of the framework

agreement. In the case of dyn amic purchasing systems, the

maximum yearly turnover requirement referred to in regulation

219(1) shall be calculated on the basis of the expected maximum

size of specific contracts to be awarded under that system.

(1) As to technical and professional ability, contracting

authorities may impose requirements ensuring that economic

operators possess the necessary human and technical resources and

experience to perform the contract to an appropriate quality

standard.

(2) Contracting authorities may require, in particular, that

e c o n o m i c o p e r a t o r s h a v e a s u ff i c i e n t l e v e l o f e x p e r i e n c e

demonstrated by suitable references from contracts performed in

the past. A contracting authority may assume that an economic

operator does not possess the required professional abilities where

the contracting authority has established that the economic operator

h a s c o n f l i c t i n g i n t e r e s t s w h i c h m a y n e g a t i v e l y a ff e c t t h e

performance of the contract.

In procurement procedures for supplies requiring siting or

installation work, services or works, the professional ability of

economic operators to provide the service or to execute the

installation or the work may be evaluated with regard to their skills,

efficiency, experience and reliability.

Contracting authorities shall indicate the required

conditions of participation which may be expressed as minimum

levels of ability, together with the appropriate means of proof, in

the contract notice or in the invitation to confirm interest.

(1) At the time of submission of requests to participate or

of tenders, both having an estimated value which falls under

r egu lat io n 9 (1 )( b), contracting authorities shall accept the

European Single Procurement Document (ESPD), consisting of an

updated self-declaration as preliminary evidence in replacement of

certificates issued by public authorities or third parties confirming

that the relevant economic operator fulfils the following

conditions

(a) it is not in one of the situations referred to in Part VI in

which economic operators shall or may be excluded;

(b) it meets the relevant selection criteria that have been

set out pursuant to regulation 217;

(c) where applicable, it fulfils the objective rules and

criteria that have been set out pursuant to regulation

(1) Id-Dokument Ewropew ta’ Akkwist Uniku għandu

jikkonsisti f’dikjarazzjoni formali mill-operatur ekonomiku li r-raġuni

rilevanti għall-esklużjoni ma tapplikax u, jew li l-kriterju rilevanti ta’

għażla huwa ssodisfat u għandu jipprovdi l-informazzjoni rilevanti kif

meħtieġa mill-awtorità kontraenti. Id-Dokument Ewropew ta’ Akkwist

Uniku għandu wkoll jidentifika l-awtorità pubblika jew it-terza persuna

responsabbli għall-ħruġ tad-dokumenti ta’ sostenn u għandu jkun fih

dikjarazzjoni formali li jgħid li l-operatur ekonomiku ser ikun jista’, fuq

talba u mingħajr dewmien, jipprovdi dawk id-dokumenti ta’ sostenn.

(2) Fejn l-awtorità kontraenti tista’ takkwista d-dokumenti ta’

sostenn direttament permezz ta’ aċċess għal database skont ir-

regolament 229(3), id-Dokument Ewropew ta’ Akkwist Uniku għandu

wkoll ikun fih l-informazzjoni meħtieġa għal dan l-iskop, bħall-indirizz

tal-internet tad-database, kwalunkwe data ta’ identifikazzjoni u, fejn

applikabbli, id-dikjarazzjoni neċessarja tal-kunsens.

L-operaturi ekonomiċi jistgħu jerġgħu jużaw id-Dokument

Ewropew ta’ Akkwist Uniku li jkun diġà ntuża f’proċedura ta’ akkwist

preċedenti, dment li jikkonfermaw li l-informazzjoni li fih għadha

korretta.

Id-Dokument Ewropew ta’ Akkwist Uniku għandu jitfassal

abbażi ta’ formula standard u għandu jiġi provdut esklussivament fi

format elettroniku.

(1) Awtorità kontraenti tista’, fi kwalunkwe mument

matul il-proċedura, titlob lill-offerenti u lill-kandidati jissottomettu

d-dokumenti ta’ sostenn kollha jew parti minnhom fejn dan huwa

meħtieġ sabiex tiġi żgurata t-tmexxija korretta tal-proċedura.

(2) Qabel ma tagħti l-kuntratt, l-awtorità kontraenti għandha,

ħlief fir-rigward tal-kuntratti bbażati fuq ftehim qafas meta tali

kuntratti jkunu konklużi f’konformità mar-regolamenti 172 u 173,

tobbliga lill-offerent li lilu tkun iddeċidiet li tagħti l-kuntratt li

jippreżenta dokumenti ta’ sostenn aġġornati skont ir-regolamenti

230, 231 u 232 kif applikabbli u, fejn adegwat, ir-regolament 235.

L-awtorità kontraenti tista’ tistieden lill-operaturi ekonomiċi

sabiex jissupplimentaw jew jiċċaraw iċ-ċertifikati riċevuti skont ir-

regolamenti 230 sa 234.

(3) Minkejja d-dispożizzjonijiet tas-subregolamenti (1) u (2), l-

operaturi ekonomiċi ma għandhomx jiġu obbligati jissottomettu

dokumenti ta’ sostenn jew informazzjoni dokumentarja oħra fejn u

jekk l-awtorità kontraenti għandha l-possibbiltà li tikseb iċ-

ċertifikati jew l-informazzjoni rilevanti direttament permezz ta’

aċċess għal database nazzjonali fi kwalunkwe Stat Membru li jkun

disponibbli mingħajr ħlas, bħal reġistru nazzjonali tal-akkwisti,

dossier tal-kumpanniji virtwali, sistema elettronika għall-ħażna

tad-dokumenti jew sistema ta’ prekwalifikazzjoni.

(4) Minkejja d-dispożizzjonijiet tas-subregolamenti (1) u (2), l-

operaturi ekonomiċi m’għandhomx ikunu meħtieġa li jippreżentaw

dokumenti ta’ appoġġ, fejn l-awtorità kontraenti li tkun tat il-

kuntratt jew li tkun ikkonkludiet il-ftehim qafas, diġà jkollha dawn

id-dokumenti.

(1) L-awtoritajiet kontraenti jistgħu jesiġu ċ-ċertifikati,

id-dikjarazzjonijiet u l-mezzi l-oħra ta’ prova imsemmijin f’dan ir-

regolament kif ukoll fir-regolamenti 231 u 232 bħala evidenza tan-

nuqqas ta’ raġunijiet għall-esklużjoni kif imsemmi fit-Taqsima VI

u għall-issodisfar tal-kriterji ta’ għażla skont ir-regolament 217.

(2) L-awtoritajiet kontraenti ma għandhomx jitolbu mezzi ta’

prova għajr dawk imsemmija f’dan ir-regolament u fir-regolamenti

231, 232 u 234. Fir-rigward tar-regolament 235, l-atturi ekonomiċi

jistgħu jiddependu fuq kwalunkwe mezz adegwat sabiex jagħtu

prova lill-awtorità kontraenti li ser jkollhom ir-riżorsi meħtieġa

għad-dispożizzjoni tagħhom.

(3) L-awtoritajiet kontraenti għandhom jaċċettaw dan li ġej

bħala evidenza suffiċjenti li l-ebda mill-każijiet speċifikati fir-

regolamenti l192, 193, 194 u 199 ma japplikaw għall-operatur

ekonomiku

(a) fir-rigward tar-regolament 192, tiġi pprovduta silta

mir-reġistru relevanti, bħall-kondotta jew, fin-nuqqas

ta’ din, ta’ dokument ekwivalenti maħruġ minn

awtorità ġudizzjarja jew amministrattiva kompetenti

fl-Istat Membru jew fil-pajjiż ta’ oriġini jew fil-pajjiż

fejn l-operatur ekonomiku jkun stabbilit billi juri li

dawn ir-rekwiżiti ġew sodisfatti;

(b) fir-rigward tar-regolamenti 193 u 194(a), ċertifikat

maħruġ mill-awtorità kompetenti fl-Istat Membru jew

fil-pajjiż ikkonċernat.

(4) Fejn l-Istat Membru jew il-pajjiż inkwistjoni ma joħroġx

dokumenti jew ċertifikati msemmija fis-subregolament (3), jew

fejn dawn ma jkoprux l-każijiet kollha speċifikati fir-regolamenti

192, 193 u 194(a), dawn jistgħu jiġu sostitwiti b’dikjarazzjoni bil-

ġ u r a m e n t j e w, f i St a t i M e m b r i j e w p a j j i ż i f e j n m a h e m m x

dispożizzjoni għal dikjarazzjonijiet bil-ġurament, b’dikjarazzjoni

solenni magħmula mill-persuna kkonċernata quddiem awtorità

ġudizzjarja jew amministrattiva kompetenti, nutar jew korp

professjonali jew kummerċjali kompetenti, fl-Istat Membru jew fil-

pajjiż ta’ oriġini jew fl-Istat Membru jew fil-pajjiż fejn l-operatur

ekonomiku ikun stabbilit.

(5) Fejn ikun rilevanti, id-Direttur għandu jipprovdi

dikjarazzjoni uffiċjali li tistqarr li d-dokumenti jew ċertifikati

msemmijin f ’dan is-subregolament ma jinħarġux jew li huma ma

jkoprux il-każijiet kollha speċifikati fir-regolamenti 192, 193 u

194(a). Dawn id-dikjarazzjonijiet uffiċjali għandhom ikunu

disponibbli permezz tar-repożitorju online taċ-ċertifikati (e-Certis).

(1) Bħala regola ġenerali, il-prova tal-qagħda ekonomika

u finanzjarja tal-operatur ekonomiku tista’ tiġi pprovduta permezz

ta’ waħda jew aktar mir-referenzi li ġejjin

(a) dikjarazzjonijiet xierqa minn banek, jew, fejn xieraq,

prova tal-assigurazzjoni ta’ indennizz għar-riskju

professjonali rilevanti;

(b) il-preżentazzjoni ta’ rendikonti finanzjarji jew estratti mir-

rendikonti finanzjarji, fejn il-pubblikazzjoni tar-rendikonti

finanzjarji tkun meħtieġa skont il-liġi tal-pajjiż li fih l-

operatur ekonomiku jkun stabbilit;

(ċ) dikjarazzjoni tal-fatturat ġenerali tal-impriża u, fejn xierqa,

tal-fatturat fil-qasam kopert mill-kuntratt għal massimu

tal-aħħar tliet snin finanzjarji disponibbli, jiddependi mid-

data li fiha ġiet stabbilita l-impriża jew li fiha l-operatur

ekonomiku beda l-attività, sa fejn l-informazzjoni dwar

dawn il-fatturati tkun disponibbli.

(2) Fejn, għal kwalunkwe raġuni valida, l-operatur ekonomiku

m a j kun x j ista’ j ipp rov di r-referenzi m it lub a m ill -awt orità

kontraenti, jista’ jagħti prova tal-qagħda ekonomika u finanzjarja

permezz ta’ kwalunkwe dokument ieħor li l-awtorità kontraenti tqis

bħala adatt.

Evidenza tal-abbiltajiet tekniċi tal-operaturi ekonomiċi

tista’ tiġi pprovduta permezz ta’ mezz wieħed jew aktar minn dawn

li ġejjin, skont in-natura, il-kwantità jew l-importanza, u l-użu tax-

xogħlijiet, provvisti jew servizzi

(a) permezz tal-listi li ġejjin

(i)

lista tax-xogħlijiet imwettqa matul massimu ta’

ħames snin, flimkien ma’ ċertifikati tat-twettiq u

r-riżultat sodisfaċenti tal-aktar xogħlijiet

importanti; fejn dan ikun meħtieġ sabiex jiġi

żgurat livell adegwat ta’ kompetizzjoni, l-

awtoritajiet kontraenti jistgħu jindikaw li ser

jittieħdu f’kunsiderazzjoni provi ta’ xogħlijiet

rilevanti mwettqa aktar minn ħames snin qabel;

(ii) lista tal-konsenji prinċipali effettwati jew is-

servizzi ewlenin ipprovduti matul mhux aktar

mill-aħħar tliet snin, bis-somom, dati u riċevituri

involuti, kemm jekk pubbliċi kif ukoll jekk

privati. Fejn dan ikun meħtieġ sabiex jiġi żgurat

livell adegwat ta’ kompetizzjoni, l-awtoritajiet

kontraenti jistgħu jindikaw li jistgħu jieħdu

f’kunsiderazzjoni provi ta’ provvisti jew

servizzi rilevanti mwassla jew imwettqa aktar

minn tliet snin qabel;

(b) indikazzjoni tat-tekniċi jew il-korpi tekniċi involuti,

kemm jekk jappartjenu jew le b’mod dirett għall-

impriża tal-operatur ekonomiku, b’mod partikolari

dawk responsabbli mill-kontroll tal-kwalità u, fil-każ

ta’ kuntratti pubbliċi ta’ xogħlijiet, dawk li l-kuntrattur

jista’ jinkariga sabiex iwettqu x-xogħol;

(ċ) deskrizzjoni tal-faċilitajiet u l-miżuri tekniċi użati

mill-operatur ekonomiku għall-iżgurar tal-kwalità u l-

faċilitajiet ta’ studju u riċerka tal-impriża;

(d) indikazzjoni ta’ sistemi ta’ ġestjoni u ta’ traċċar tal-

katina tal-provvista li l-operatur ekonomiku ser ikun

jista’ japplika meta jwettaq il-kuntratt;

(e) fejn il-prodotti jew is-servizzi li jridu jiġu pprovduti

huma kumplessi jew, b’mod eċċezzjonali, huma

meħtieġa għal skop speċjali, verifika mwettqa mill-

awtoritajiet kontraenti jew f’isimhom minn korp

uffiċjali kompetenti tal-pajjiż li fih huwa stabbilit il-

fornitur tal-provvista jew il-fornitur tas-servizz,

soġġett għall-ftehim ta’ dak il-korp, fuq il-kapaċitajiet

tal-produzzjoni tal-fornitur tal-provvista jew il-

kapaċità teknika tal-fornitur tas-servizz u, fejn dak

ikun meħtieġ, fuq il-mezzi ta’ studju u riċerka li huma

disponibbli għalih u l-miżuri ta’ kontroll tal-kwalità li

ser iħaddem;

(f)

il-kwalifiki edukattivi u professjonali ta’ min jipprovdi

servizz jew kuntrattur jew dawk tal-persunal

maniġerijali tal-impriża u, sakemm ma jiġux ivvalutati

bħala kriterju tal-għoti;

(g) indikazzjoni tal-miżuri ta’ ġestjoni ambjentali li l-

operatur ekonomiku ser ikun jista’ japplika meta

jwettaq il-kuntratt;

(h) dikjarazzjoni tal-ammont annwali medju ta’ ħaddiema

tal-fornitur jew tal-kuntrattur tas-servizz u n-numru ta’

persunal amministrattiv għall-aħħar tliet snin;

(i)

dikjarazzjoni dwar l-għodod, l-impjant u t-tagħmir

tekniku għad-dispożizzjoni tal-fornitur jew il-

kuntrattur tas-servizz għat-twettiq tal-kuntratt;

(j)

indikazzjoni tas-sehem tal-kuntratt li l-operatur

ekonomiku bi ħsiebu possibilment li jagħtih bħala

subkuntratt;

(k) fir-rigward tal-prodotti li għandhom jiġu pprovduti

(i)

kampjuni, deskrizzjonijiet jew ritratti, li l-

awtentiċità tagħhom trid tiġi ċertifikata fejn l-

awtorità kontraenti titlob dan;

(ii) ċertifikati mfassla minn istituti jew aġenziji

uffiċjali tal-kontroll tal-kwalità b’kompetenza

rikonoxxuta li jikkonfermaw il-konformità tal-

prodotti identifikati b’mod ċar mir-referenzi

għall-ispeċifikazzjonijiet jew standards tekniċi.

(1) Bil-ħsieb li jiġu ffaċilitati l-offerti transkonfinali, il-

Gvern ta’ Malta għandu jiżgura li l-informazzjoni li tikkonċerna

ċertifikati u forom oħra ta’ provi dokumentati introdotti fl-e-Certis

tibqa’ aġġornata kostantement.

(2) L-awtoritajiet kontraenti għandhom ikunu jistgħu jirrikorru

għall-e-Certis u jistgħu jesiġu primarjament dawk it-tipi ta’

ċertifikati jew forom ta’ evidenza dokumentata li jkunu koperti bl-

e-Certis.

(1) L-awtoritajiet kontraenti għandhom, fejn jesiġu li jiġu

pprovduti ċertifikati maħruġin minn korpi indipendenti li

jikkonfermaw li l-operatur ekonomiku jikkonforma ma’ ċerti

standards ta’ garanzija tal-kwalità, ukoll dwar l-aċċessibilità għal

persuni b’diżabilità, jirreferu għas-sistemi ta’ garanzija tal-kwalità

bbażati fuq is-serje ta’ standards Ewropej rilevanti ċċertifikati

minn korpi akkreditati. Huma għandhom jirrikonoxxu ċertifikati

e k w i v a l e n t i m i n n k o r p i s t a b b i l i t i f i St a t i M e m b r i o ħ r a j n .

Għandhom ukoll jaċċettaw evidenza oħra ta’ miżuri ekwivalenti ta’

garanzija tal-kwalità fejn l-operatur ekonomiku kkonċernat ma

kellux il-possibbiltà li jikseb tali ċertifikati fil-limiti ta’ żmien

rilevanti għal raġunijiet li mhumiex attribwibbli lil dak l-operatur

ekonomiku dment li l-operatur ekonomiku jagħti prova li l-miżuri

ta’ garanziji tal-kwalità jikkonformaw mal-istandards ta’ garanziji

tal-kwalità meħtieġa.

(2) Fejn l-awtoritajiet kontraenti jesiġu li jiġu pprovduti

ċertifikati mfassla minn korpi indipendenti li jikkonfermaw li l-

operatur ekonomiku jikkonforma ma’ ċerti sistemi jew standards

ta’ ġestjoni ambjentali, huma għandhom jirreferu għall-Iskema tal-

Unj oni E wropea għall-Immaniġġ jar tal-Am bjent u Verifika

(EMAS) tal-Unjoni jew għal sistemi ta’ ġestjoni ambjentali oħrajn

kif rikonoxxuti skont l-Artikolu 45 tar-Regolament (KE) Nru 1221/

2009 jew standards oħrajn ta’ ġestjoni ambjentali bbażati fuq l-

istandards Ewropej jew internazzjonali rilevanti minn korpi

akkreditati. Huma għandhom jirrikonoxxu ċertifikati ekwivalenti

minn korpi stabbiliti fi Stati Membri oħrajn.

(3) Fejn operatur ekonomiku seta’ juri li ma għandux aċċess

għaċ-ċertifikati msemmija fis-subregoloament (2), jew li ma

għandux possibbiltà li jiksibhom fil-limiti ta’ żmien rilevanti għal

raġunijiet li mhumiex attribwibbli lil dak l-operatur ekonomiku, l-

awtorità kontraenti għandha taċċetta wkoll evidenza oħra ta’ miżuri

ta’ ġestjoni ambjentali, dment li l-operatur ekonomiku jagħti prova

li dawn il-miżuri huma ekwivalenti għal dawk meħtieġa skont is-

sistema jew standard ta’ ġestjoni ambjentali applikabbli.

(1) Fir-rigward tal-kriterji relatati mal-qagħda ekonomika

u finanzjarja kif stabbilit skont ir-regolamenti 218 sa 221, u l-

kriterji relatati mal-abbiltà teknika jew professjonali kif stabbilit

skont ir-regolamenti 222 u 223, operatur ekonomiku jista’, fejn dan

ikun adegwat u għal kuntratt partikolari, jiddependi fuq il-

kapaċitjiet ta’ entitajiet oħra, irrilevanti min-natura legali tar-

rabtiet li għandu magħhom. Fir-rigward tal-kriterji relatati mal-

kwalifiki edukattivi u professjonali kif jinsabu fir-regolament

232(f), jew l-esperjenza professjonali rilevanti, l-operaturi

ekonomiċi jistgħu madankollu jiddependu biss fuq il-kapaċitajiet

ta’ entitajiet oħra meta dawn tal-aħħar ser iwettqu l-ħidmiet jew is-

servizzi li għalihom huma meħtieġa dawn il-kapaċitajiet. Meta

operatur ekonomiku jkun irid jiddependi fuq il-kapaċitajiet ta’

entitajiet oħra, dan għandu jagħti prova lill-awtorità kontraenti li

huwa ser ikollu r-riżorsi meħtieġa għad-dispożizzjoni tiegħu,

pereżempju, billi jippreżenta impenn minn dawk l-entitajiet għal

dan il-għan.

(2) L-awtorità kontraenti għandha, f’konformità mar-

regolamenti 225 sa 233, tivverifika jekk l-entitajiet li fuq il-

kapaċità tagħhom l-operatur ekonomiku għandu l-intenzjoni li

jiddependi, jissodisfawx il-kriterji ta’ għażla rilevanti u jekk

hemmx raġunijiet għal esklużjoni skont it-Taqsima VI. L-awtorità

kontraenti għandha tesiġi li l-operatur ekonomiku jissostitwixxi

entità li ma tissodisfax kriterju ta’ għażla rilevanti, jew li fir-

rigward tagħha hemm raġunijiet obbligatorji għal esklużjon jew li

tkun ġiet black listed skont it-Taqsima VI.

(3) Fejn operatur ekonomiku jiddependi fuq il-kapaċitajiet ta’

entitajiet oħrajn fir-rigward ta’ kriterji relatati mal-pożizzjoni

ekonomika u finanzjarja, l-awtorità kontraenti tista’ tesiġi li l-

operatur ekonomiku u dawk l-entitajiet ikunu responsabbli b’mod

konġunt għall-eżekuzzjoni tal-kuntratt.

(4) Taħt l-istess kondizzjonijiet, grupp ta’ operaturi ekonomiċi

kif imsemmi fir-regolament 58 jista’ jiddependi fuq il-kapaċitajiet

ta’ parteċipanti fil-grupp jew ta’ entitajiet oħra.

(5) Fil-każ ta’ kuntratti ta’ xogħlijiet, kuntratti ta’ servizzi u

operazzjonijiet ta’ tqegħid fil-post jew ta’ istallazzjoni fil-kuntest ta’

kuntratt ta’ provvista, l-awtoritajiet kontraenti jistgħu jesiġu li ċerti

kompiti kritiċi jitwettqu direttament mill-offerent stess jew, fejn l-

offerta tkun sottomessa minn grupp ta’ operaturi ekonomiċi kif

imsemmi fir-regolament 58, minn parteċipant f’dak il-grupp.

Il-Ministru jkollu l-awtorità li jistabbilixxi regolamenti

biex jitħejjew listi uffiċjali ta’ operaturi ekonomiċi approvati u

ċertifikazzjoni minn korpi stabbiliti taħt id-dritt pubbliku u privat.

Tnaqqis fin-Numru ta’ Kandidati, Offerenti u Soluzzjonijiet

(2) Where the economic operator relies on the capacities of

other entities pursuant to regulation 235, the ESPD shall also

contain the information referred to in sub-regulation (1)(a) in

respect of such entities.

226. (1) The ESPD shall consist of a formal statement by the

economic operator that the relevant ground for exclusion does not

apply and, or that the relevant selection criterion is fulfilled and

shall provide the relevant information as required by the

contracting authority. The ESPD shall further identify the public

authority or third party responsible for establishing the supporting

documents and contain a formal statement to the effect that the

economic operator will be able, upon request and without delay, to

provide those supporting documents.

(2) Where the contracting authority can obtain the supporting

documents directly by accessing a database pursuant to regulation

229(3), the EPSD shall also contain the information required for

this purpose, such as the internet address of the database, any

identification data and, where applicable, the necessary declaration

of consent.

227. Economic operators may re-use an ESPD which has already

been used in a previous procurement procedure, provided that they

confirm that the information contained therein continues to be

correct.

228. The ESPD shall be drawn up on the basis of a standard form

and shall be provided exclusively in electronic form.

229. (1) A contracting authority may ask tenderers and

candidates at any moment during the procedure to submit all or part

of the supporting documents where this is necessary to ensure the

proper conduct of the procedure.

(2) Before awarding the contract, the contracting authority

shall, except in respect of contracts based on framework

agreements where such contracts are concluded in accordance with

regulations 172 and 173, require the tenderer to which it has

decided to award the contract to submit up-to-date supporting

documents in accordance with regulations 230, 231 and 232 as

applicable and, where appropriate, regulation 235. The contracting

authority may invite economic operators to supplement or clarify

the certificates received pursuant to regulations 230 to 234.

(3) Notwithstanding the provisions of sub-regulations (1) and

(2), economic operators shall not be required to submit supporting

documents or other documentary evidence where and in so far as

the contracting authority has the possibility of obtaining the

certificates or the relevant information directly by accessing a

national database in any Member State that is available free of

charge, such as a national procurement register, a virtual company

d o s s i e r, a n e l e c t r o n i c d o c u m e n t s t o r a g e s y s t e m o r a p r e -

qualification system.

(4) Notwithstanding the provisions of sub-regulations (1) and

(2), economic operators shall not be required to submit supporting

documents where the contracting authority, having awarded the

contract or concluded the framework agreement, already possesses

these documents.

230. (1) Contracting authorities may require the certificates,

statements and other means of proof referred to in this regulation as

well as regulations 231 and 232 as evidence for the absence of

gro und s for excl usion as referred t o in Part VI and for th e

fulfilment of the selection criteria in accordance with regulation

217. (2) Contracting authorities shall not require means of proof

other than those referred to in this regulation and regulations 231,

232 and 234. In respect of regulation 235, economic operators may

rely on any appropriate means to prove to the contracting authority

that they will have the necessary resources at their disposal.

(3) Contracting authorities shall accept the following as

sufficient evidence that none of the cases specified in regulations

192, 193, 194 and 199 apply to the economic operator

(a) as regards regulation 192, the production of an extract

from the relevant register, such as judicial records or,

failing that, of an equivalent document issued by a

competent judicial or administrative authority in the

Member State or country of origin or the country

where the economic operator is established showing

that those requirements have been met;

(b) as regards regulations 193 and 194(a), a certificate

issued by the competent authority in the Member State

or country concerned.

(4) Where the Member State or country in question does not

issue the documents or certificates referred to in sub-regulation (3),

or where these do not cover all the cases specified in regulations

192, 193 and 194(a), they may be replaced by a declaration on oath

or, in Member States or countries where there is no provision for

declarations on oath, by a solemn declaration made by the person

concerned before a competent judicial or administrative authority, a

notary or a competent professional or trade body, in the Member

State or country of origin or in the Member State or country where

the economic operator is established.

(5) The Director shall, where relevant, provide an official

declaration stating that the documents or certificates referred to in

this sub-regulation are not issued or that they do not cover all the

cases specified in regulations 192, 193 and 194(a). Such official

declarations shall be made available through the online repository

of certificates (e-Certis).

231. (1) Proof of the economic operator’s economic and

financial standing may, as a general rule, be provided by one or

more of the following

(a) appropriate statements from banks or, where

appropriate, evidence of relevant professional risk

indemnity insurance;

(b) the presentation of financial statements or extracts

from the financial statements, where publication of

financial statements is required under the law of the

country in which the economic operator is established;

(c) a statement of the undertaking’s overall turnover and,

where appropriate, of turnover in the area covered by

the contract for a maximum of the last three financial

years available, depending on the date on which the

undertaking was set up or the economic operator

started trading, as far as the information on these

turnovers is available.

(2) Where, for any valid reason, the economic operator is

unable to provide the references requested by the contracting

authority, it may prove its economic and financial standing by any

other document which the contracting authority considers

appropriate.

232. Evidence of the economic operators’ technical abilities

may be provided by one or more of the following means, in

accordance with the nature, quantity or importance, and use of the

works, supplies or services

(a) by means of the following lists

(i)

a list of the works carried out, at most, over the

past five years, accompanied by certificates of

satisfactory execution and outcome for the most

important works; where necessary in order to

ensure an adequate level of competition,

contracting authorities may indicate that

evidence of relevant works carried out more

than five years before will be taken into account;

(ii) a list of the principal deliveries effected or the

main services provided over, at the most, the

past three years, with the sums, dates and

recipients, whether public or private, involved.

Where necessary in order to ensure an adequate

level of competition, contracting authorities may

indicate that evidence of relevant supplies or

services delivered or performed more than three

years before will be taken into account;

(b) an indication of the technicians or technical bodies

involved, whether or not belonging directly to the

economic operator’s undertaking, especially those

responsible for quality control and, in the case of

public works contracts, those upon whom the

contractor can call in order to carry out the work;

(c) a description of the technical facilities and measures

used by the economic operator for ensuring quality and

the undertaking’s study and research facilities;

(d) an indication of the supply chain management and

tracking systems that the economic operator will be

able to apply when performing the contract;

(e) where the products or services to be supplied are

complex or, exceptionally, are required for a special

purpose, a check carried out by the contracting

authorities or on their behalf by a competent official

body of the country in which the supplier or service

provider is established, subject to that body’s

agreement, on the production capacities of the supplier

or the technical capacity of the service provider and,

where necessary, on the means of study and research

which are available to it and the quality control

measures it will operate;

(f)

the educational and professional qualifications of the

service provider or contractor or those of the

undertaking’s managerial staff, provided that they are

not evaluated as an award criterion;

(g) an indication of the environmental management

measures that the economic operator will be able to

apply when performing the contract;

(h) a statement of the average annual manpower of the

service provider or contractor and the number of

managerial staff for the last three years;

(i)

a statement of the tools, plant or technical equipment

available to the service provider or contractor for

carrying out the contract;

(j)

an indication of the proportion of the contract which

the economic operator intends possibly to subcontract;

(k) with regard to the products to be supplied

(i)

samples, descriptions or photographs, the

authenticity of which must be certified where

the contracting authority so requests;

(ii) certificates drawn up by official quality control

institutes or agencies of recognised competence

attesting the conformity of products clearly

identified

by

references

to

technical

specifications or standards.

233. (1) With a view to facilitating cross-border tendering, the

Government of Malta shall ensure that the information concerning

certificates and other forms of documentary evidence introduced in

e-Certis established by the Commission is constantly kept up-to-

date.

(2) Contracting authorities shall have recourse to e-Certis and

shall require primarily such types of certificates or forms of

documentary evidence that are covered by e-Certis.

234. (1) Contracting authorities shall, where they require the

production of certificates drawn up by independent bodies attesting

that the economic operator complies with certain quality assurance

standards, including on accessibility for disabled persons, refer to

quality assurance systems based on the relevant European standards

series ce rtified by accredited b odies. They shall r ecognise

equivalent certificates from bodies established in other Member

States. They shall also accept other evidence of equivalent quality

assurance measures where the economic operator concerned had no

possibility of obtaining such certificates within the relevant time

limits for reasons that are not attributable to that economic operator

provided that the economic operator proves that the proposed

quality assurance measures comply with the required quality

assurance standards.

(2) Where contracting authorities require the production of

certificates drawn up by independent bodies attesting that the

economic operator complies with certain environmental

management systems or standards, they shall refer to the Eco-

Management and Audit Scheme (EMAS) of the Union or to other

environmental management systems as recognised in accordance

w ith Articl e 45 of Regu lati on (EC) No 122 1/2 009 or ot her

environmental management standards based on the relevant

European or international standards by accredited bodies. They

shall recognise equivalent certificates from bodies established in

other Member States.

(3) Where an economic operator had demonstrably no access to

the certificates mentioned in sub-regulation (2), or no possibility of

obtaining them within the relevant time limits for reasons that are

not attributable to that economic operator, the contracting authority

shall also accept other evidence of environmental management

measures, provided that the economic operator proves that these

measures are equivalent to those required under the applicable

environmental management system or standard.

235. (1) With regard to criteria relating to economic and

financial standing as set out pursuant to regulations 218 to 221, and

to criteria relating to technical and professional ability as set out

pursuant to regulations 222 and 223, an economic operator may,

where appropriate and for a particular contract, rely on the

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

links which it has with them. With regard to criteria relating to the

educational and professional qualifications as set out in regulation

232(f), 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

authority that it will have at its disposal the resources necessary, for

example, by producing a commitment by those entities to that

effect.

(2) The contracting authority shall, in accordance with

regulations 225 to 233, verify whether the entities on whose

capacity the economic operator intends to rely, fulfils the relevant

selection criteria and whether he falls under any ground established

under Part VI. The contracting authority shall require that the

economic operator replaces an entity which does not meet a

relevant selection criterion, or in respect of which there are grounds

for exclusion or has been black listed under Part VI.

(3) Where an economic operator relies on the capacities of

other entities with regard to criteria relating to economic and

financial standing, the contracting authority may require that the

economic operator and those entities be jointly liable for the

execution of the contract.

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

as referred to in regulation 58 may rely on the capacities of

participants in the group or of other entities.

(5) In the case of works contracts, service contracts and siting

or installation operations in the context of a supply contract,

contracting authorities may require that certain critical tasks be

performed directly by the tenderer itself or, where the tender is

submitted by a group of economic operators as referred to in

regulation 58, by a participant in that group.

236. The Minister shall have the authority to establish

regulations for drawing up of official lists of approved economic

operators and certification by bodies established under public or

private law.

Reduction of numbers of candidates, tenders and solutions

237. (1) In restricted procedures, competitive procedures with

negotiation, competitive dialogue procedures and innovation

partnerships, with an estimated value which falls under regulation

9(1)(b), contracting authorities may limit the number of candidates

meeting the selection criteria that they will invite to tender or to

conduct a dialogue, provided the minimum number, in accordance

with sub-regulation (2), of qualified candidates is available.

(2) The contracting authorities shall indicate, in the contract

notice or in the invitation to confirm interest, the objective and

non-discriminatory criteria or rules they intend to apply, the

minimum number of candidates they intend to invite and, where

appropriate, the maximum number.

(3) In the restricted procedure the minimum number of

candidates shall be five. In the competitive procedure with

negotiation, in the competitive dialogue procedure and in the

innovation partnership the minimum number of candidates shall be

three. In any event the number of candidates invited shall be

sufficient to ensure genuine competition.

(4) The contracting authorities shall invite a number of

candidates at least equal to the minimum number. However, where

the number of candidates meeting the selection criteria and the

minimum levels of ability as referred to in regulation 224 is below

the minimum number, the contracting authority may continue the

procedure by inviting the candidates with the required capabilities.

In the context of the same procedure, the contracting authority shall

not include economic operators that did not request to participate,

or candidates that do not have the required capabilities.

Where contracting authorities exercise the option of

reducing the number of tenders to be negotiated as provided for in

regulation 127(4) or of solutions to be discussed as provided for in

regulation 146, they shall do so by applying the award criteria

stated in the procurement documents. In the final stage, the number

arrived at shall make for genuine competition in so far as there are

enough tenders, solutions or qualified candidates.

Award of Contract

(1) Without prejudice to regulations or administrative

provisions concerning the price of certain supplies or the

remuneration of certain services, contracting authorities shall base

the award of public contracts on the most economically

advantageous tender.

(2) The most economically advantageous tender from the point

of view of the contracting authority shall be identified on the basis

of the price or cost, using a cost-effectiveness approach, such as

life-cycle costing in accordance with regulation 240, and may

include the best price-quality ratio, which shall be assessed on the

basis of criteria, including qualitative, environmental and, or social

aspects, linked to the subject-matter of the public contract in

question. Such criteria may comprise, for instance

(a) quality, including technical merit, aesthetic and

functional characteristics, accessibility, design for all

users,

social,

environmental

and

innovative

characteristics and trading and its conditions;

(b) organisation, qualification and experience of staff

assigned to performing the contract, where the quality

of the staff assigned can have a significant impact on

the level of performance of the contract; or

(c) after-sales service and technical assistance, delivery

conditions such as delivery date, delivery process and

delivery period or period of completion.

(3) The cost element may also take the form of a fixed price or

cost on the basis of which economic operators will compete on

quality criteria only.

(4) Award criteria shall be considered to be linked to the

subject-matter of the public contract where they relate to the works,

supplies or services to be provided under that contract in any

respect and at any stage of their life cycle, including factors

involved in

(a) the specific process of production, provision or trading

of those works, supplies or services; or

(b) a specific process for another stage of their life cycle.

(5) Award criteria shall be considered to be linked to the

subject-matter of the public contract even where the factors

established in sub-regulation (4) do not form part of their material

substance.

(6) Award criteria shall not have the effect of conferring an

unrestricted freedom of choice on the contracting authority. They

shall ensure the possibility of effective competition and shall be

accompanied by specifications that allow the information provided

by the tenderers to be effectively verified in order to assess how

w e l l t h e t e n d e r s m e e t t he a w a r d c r it e r ia . I n c a s e o f d ou bt ,

contracting authorities shall verify effectively the accuracy of the

information and proof provided by the tenderers.

(7) The contracting authority shall specify, in the procurement

documents, the relative weighting which it gives to each of the

criteria chosen to determine the most economically advantageous

tender, except where this is identified on the basis of price alone.

(8) Those weightings may be expressed by providing for a

range with an appropriate maximum spread.

(9) Where weighting is not possible for objective reasons, the

contracting authority shall indicate the criteria in decreasing order

of importance.

(1) Life-cycle costing shall to the extent relevant cover

parts or all of the following costs over the life cycle of a product,

service or works

(a) costs, borne by the contracting authority or other

users, such as

(i) costs relating to acquisition;

(ii) costs of use, such as consumption of energy and

other resources;

(iii) maintenance costs;

(iv) end of life costs, such as collection and

recycling costs;

(b) costs imputed to environmental externalities linked to

the product, service or works during its life cycle,

provided their monetary value can be determined and

verified; such costs may include the cost of emissions

of greenhouse gases and of other pollutant emissions

and other climate change mitigation costs.

(2) Where contracting authorities assess the costs using a life-

cycle costing approach, they shall indicate in the procurement

documents the data to be provided by the tenderers and the method

which the contracting authority will use to determine the life-cycle

costs on the basis of those data.

(3) The method used for the assessment of costs imputed to

environmental externalities shall fulfil all of the following

conditions

(a) it is based on objectively verifiable and non-

discriminatory criteria. In particular, where it has not

been established for repeated or continuous

application, it shall not unduly favour or disadvantage

certain economic operators;

(b) it is accessible to all interested parties;

(c) the data required can be provided with reasonable

effort by normally diligent economic operators,

including economic operators from third countries

party to the GPA or other international agreements by

which the Union is bound.

(4) Whenever a common method for the calculation of life-

cycle costs has been made mandatory by a legislative act of the

Union, that common method shall be applied for the assessment of

life-cycle costs.

(5) A list of the common methods of calculation mentioned in

sub-regulation (4) is established in Annex XIII of Directive 2014/

24/EU of the European Parliament and of the Council of 26

February 2014 on public procurement.

(1) This regulation shall apply to every contract or

framework agreement covered by these regulations, and every time

a dynamic purchasing system is established, where the estimated

value of such procedures falls under regulation 9(1)(b).

(2) For every contract or framework agreement covered by

these regulations, and every time a dynamic purchasing system is

established, contracting authorities shall 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 contract, framework

agreement or dynamic purchasing system;

(b) where applicable, the results of the qualitative

selection and, or reduction of numbers pursuant to

regulations 237 and 238, namely

(i)

the names of the selected candidates or tenderers

and the reasons for their selection;

(ii) the names of the candidates or tenderers rejected

and the reasons for their rejection;

(c) the reasons for the rejection of tenders found to be

abnormally low;

(d) the name of the successful tenderer and the reasons

why its tender was selected and, where known, the

share of the contract or framework agreement which

the successful tenderer intends to subcontract to third

parties; and, where known at this point in time, the

names of the main contractor’s subcontractors, if any;

(e) for competitive procedures with negotiations and

competitive dialogues, the circumstances as laid down

in regulations 123 to 127 and 140 to 149 which justify

the use of those procedures;

(f)

for negotiated procedures without prior publication,

the circumstances referred to in regulations 150 to 156

which justify the use of this procedure;

(g) where applicable, the reasons why the contracting

authority has decided not to award a contract or

framework agreement or to establish a dynamic

purchasing system;

(h) where applicable, the reasons why other means of

communication than electronic means have been used

for the submission of tenders;

(i)

where applicable, conflicts of interests detected and

subsequent measures taken.

(3) This report shall not be required in respect of contracts

based on framework agreements where these are concluded in

accordance with regulations 171, 172 or 173(1)(a).

(4) To the extent that the contract award notice drawn up

pursuant to regulation 49 or regulation 163(2) contains the

information required in this regulation, contracting authorities may

refer to that notice.

(5) Contracting authorities shall document the progress of all

procurement procedures, whether or not those are conducted by

electronic means. To that end, they shall ensure that they keep

sufficient documentation to justify decisions taken in all stages of

the procurement procedure, such as documentation on

communications with economic operators and internal

deliberations, preparation of the procurement documents, dialogue

or negotiation if any, selection and award of the contract. The

documentation shall be kept for a period of at least three years from

the date of award of the contract.

(6) The report, or its main elements, shall be communicated to

the Commission or the competent authorities, bodies or structures

where they so request.

(1) The authority responsible for the tendering process

shall inform each candidate and tenderer of decisions reached

concerning the conclusion of a framework agreement, the award of

the contract or admittance to a dynamic purchasing system,

including the grounds for any decision not to conclude a framework

agreement, not to award a contract for which there has been a call

for competition, to recommence the procedure or not to implement

a dynamic purchasing system.

(2) On request from the candidate or tenderer concerned, the

authority responsible for the tendering process shall as quickly as

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

written request, inform

(a) any unsuccessful candidate of the reasons for the

rejection of its request to participate;

(b) any unsuccessful tenderer of the reasons for the

rejection of its tender, including, for the cases referred

to in regulation 53(9) and (10), the reasons for its

decision of non-equivalence or its decision that the

works, supplies or services do not meet the

performance or functional requirements;

(c) any tenderer that has made an admissible tender of the

characteristics and relative advantages of the tender

selected as well as the name of the successful tenderer

or the parties to the framework agreement;

(d) any tenderer that has made an admissible tender of the

conduct and progress of negotiations and dialogue

with tenderers;

(e) any unsuccessful tenderer of his right to appeal a

decision taken pursuant sub-regulation (1).

(3) Contracting authorities may decide to withhold certain

information referred to in sub-regulations (1) and (2), regarding the

contract award, the conclusion of framework agreements or

admittance to a dynamic purchasing system, where the release of

su ch i nfo r ma ti on wo ul d i mp ed e la w enforcement or would

otherwise be contrary to the public interest, would prejudice the

legitimate commercial interests of a particular economic operator,

whether public or private, or might prejudice fair competition

between economic operators.

Abnormally Low Tenders and Variant Solutions

(1) Contracting authorities shall require economic

operators to explain the price or costs proposed in the tender where

tenders appear to be abnormally low in relation to the works,

supplies or services.

(2)

The explanations may in particular relate to

(a) the economics of the manufacturing process, of the

services provided or of the construction method;

(b) the technical solutions chosen or any exceptionally

favourable conditions available to the tenderer for the

supply of the products or services or for the execution

of the work;

(c) the originality of the work, supplies or services

proposed by the tenderer;

(d) compliance with obligations established in regulations

13(m) and 16(k);

(e) compliance with obligations referred to in regulation

60;

(f)

the possibility of the tenderer obtaining State aid.

(3) Failure by the economic operator to send his explanations

within the written time-frame imposed by the contracting authority,

shall be deemed as acceptance from the economic operator that his

tender is abnormally low.

(4) The contracting authority shall assess the information

provided by consulting the tenderer. It may only reject the tender

where the evidence supplied does not satisfactorily account for the

low level of price or costs proposed, taking into account the

elements referred to in sub-regulation (2).

(5) Contracting authorities shall reject the tender, where they

have established that the tender is abnormally low because it does

not comply with applicable obligations referred to in regulation

13(m) and 16(k).

(6) Where a contracting authority establishes that a tender is

abnormally low because the tenderer has obtained State aid, the

tender may be rejected on that ground alone only after consultation

with the tenderer where the latter is unable to prove, within a

sufficient time limit fixed by the contracting authority, that the aid

in question was compatible with the internal market within the

meaning of Article 107 of the TFEU. Where the contracting

authority rejects a tender in those circumstances, it shall inform the

Commission thereof.

(1) For tenders having an estimated value which falls

under the provisions of regulation 9(1)(b), contracting authorities

may authorise or require tenderers to submit variants. They shall

indicate in the contract notice whether or not they authorise or

require variants. Variants shall not be authorised without such

indication and shall be linked to the subject-matter of the contract.

(2) Contracting authorities authorising or requiring variants

shall state in the procurement documents the minimum

requirements to be met by the variants and any specific

requirements for their presentation, in particular whether variants

may be submitted only where a tender, which is not a variant, has

also been submitted. They shall also ensure that the chosen award

criteria can be applied to va rian ts m e e ti ng th ose m in im um

requirements as well as to conforming tenders which are not

variants.

(3) Only variants meeting the minimum requirements laid

down by the contracting authorities shall be taken into

consideration.

(4) In procedures for awarding public supply or service

contracts, contracting authorities that have authorised or required

variants shall not reject a variant on the sole ground that it would,

where successful, lead to either a service contract rather than a

public supply contract or a supply contract rather than a public

service contract.

Part VIII

Performance of Contracts

Contract Performance and Modifications

Contracting authorities may lay down conditions relating to

the performance of a contract, provided that they are linked to the

subject-matter of the contract within the meaning of regulation

239(4) and (5) and indicated in the call for competition or in the

procurement documents. Those conditions may include economic,

innovation-related, environmental, social or employment-related

considerations.

(1) For tenders with an estimated value which falls within

regulation 9(1)(b) and upon the prior approval of the Director a

contracting authority can order modifications to the contract or

framework agreement without a new procurement procedure, in any

of the following cases

(a) where the modifications, irrespective of their monetary

value, have been provided for in the initial

procurement documents in clear, precise and

unequivocal review clauses, which may include price

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

contract or the framework agreement;

(b) for additional works, services or supplies by the

original contractor that have become necessary and

that were not included in the initial procurement where

a change of contractor

(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 procurement; and

(ii) would cause significant inconvenience or

substantial duplication of costs for the

contracting authority

Provided that, any increase in price shall not exceed

50% of the value of the original contract;

(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 could not foresee;

(ii) the modification does not alter the overall nature

of the contract;

(iii) any increase in price is not higher than 50% of

the value of the original contract or framework

agreement;

(d) where a new contractor replaces the one to which the

contracting authority had initially awarded the contract

as a consequence of either

(i)

an unequivocal review clause or option in

conformity with paragraph (a); or

(ii) universal or partial succession into the position

of the initial contractor, 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 itself

assumes the main contractor’s obligations

towards its subcontractors;

(e) where the modifications, irrespective of their value,

are not substantial within the meaning of sub-

regulation (5).

(2) The Director or the contracting authorities having modified

a contract in the cases set out under paragraphs (b) and (c) of sub-

regulation (1) 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 9 part G and shall be published in

accordance with regulation 43.

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

under paragraphs (a) to (d) of sub-regulation (5) are met or ask for

the approval of the Director, contracts may equally be modified

without a new procurement procedure in accordance with these

regulations being necessary where the value of the modification is

below both of the following values

(a) the thresholds set out in Schedule 5; and

(b) 10% of the initial contract value for service and supply

contracts and 15% of the initial contract value for

works contracts

Provided that the modification may not alter the overall

nature of the contract or framework agreement. 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 price mentioned in

sub-regulations (3) and (1)(b) and (c), the updated price shall be the

reference value when the contract includes an indexation clause.

(5) A modification of a contract or a framework agreement

during its term shall be considered to be substantial within the

meaning of sub-regulation (1)(e), where it renders the contract or

the framework agreement materially different in character from the

one initially concluded. In any event, without prejudice to the

provisions of sub-regulations (1) 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 procurement procedure, would

have allowed for the admission of candidates 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

procurement procedure;

(b) the modification changes the economic balance of the

contract or the framework agreement in favour of the

contractor in a manner which was not provided for in

the initial contract or framework agreement;

(c) the modification extends the scope of the contract or

framework agreement considerably;

(d) where a new contractor replaces the one to which the

contracting authority had initially awarded the contract

in cases other than those provided for under sub-

regulation (1)(d).

(6) A new procurement procedure in accordance with these

regulations shall be required for other modifications of the

provisions of a public contract or a framework agreement during its

term than those provided for under sub-regulation (1) and (3).

(1) When a modification, repetition of works or services

or additional deliveries are requested of a tender with an estimated

value which falls under regulation 9(1)(b) and which cumulatively

are to exceed the amounts established under Schedule 5 and also

the 10% of the initial contract value for contracts or services and

supplies or exceed the 15% of the initial contract value for works as

the case may be, the contracting authority shall seek the approval of

the Director which shall precede the commencement of the

modification.

(2) In exceptional circumstances where the urgent nature of the

modification to be carried out is such that the contracting authority

cannot request the approval of the Director provided for under sub-

regulation (1), the contracting authority may proceed with the

modification subject that it adheres to the conditions mentioned in

these re gulations and acquires from the Di r ecto r at lea st a

preliminary permission.

(3) The contracting authority shall, within a time-frame

specified by the Director, furnish the latter with all the relevant

information as indicated in regulation 248 and failure to do so will

lead to the automatic revocation of the preliminary permission as

well as to the consequences mentioned in these regulations.

(4) Following the submission of the request in terms of

regulation 248, the Director will review the information submitted

and shall give his approval only if the modification carried out

respects the conditions in regulation 246.

(1) Requests for modifications of a tender with an

estimated value which falls under regulation 9(1)(b) shall be

submitted to the Director only by contracting authorities.

(2) In its request for approval the contracting authority shall

provide the following

(a) the reasons which brought about the need for this

modification;

(b) the effect on the total cost of the tender and any effect

on the recurrent expenditure that will ensue;

(c) the time-frame expected for the execution of the

modification;

(d) the written consent of the contractor to carry out the

modification;

(e) the legal basis for such a request whether it is being

made under regulation 246 or regulations 151, 152,

153 or 154.

In granting or refusing such a request for modification, the

Director shall assess whether the request is one that is allowed

under these regulations. The Director shall establish under which

regulation this modification is being approved and where possible

he must determine the procedure to be followed in future by the

contracting authority in order to avoid the necessity of

modifications.

The Director is to keep a full record of modification

requests, including the name of the contractor involved and details

of the documents specified in regulation 248.

When a modification is carried out without seeking the

prior approval of the Director, the Director cannot be requested to

give a retroeffective 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.

If the Director refuses to give his approval for a request for

modification, the contracting authority shall execute the contract as

issued in the procurement documents

Provided that where this is not possible the contract is to be

terminated and a fresh procurement process be carried out in line

with what is established under these regulations.

The decision of the Director relating to the refusal of a

modification is final and cannot be contested by the contracting

authority in a court or tribunal.

Any modification carried out against the expressed refusal

of the Director shall be deemed to be founded on an unlawful

consideration and the contractor shall have no right for

compensation with respect to that modification unless he shows

that he was unaware of the refusal of the Director.

Following a request by the Director, the State Advocate on

behalf of the Government may institute civil proceedings in a court

of law for the restoration of payments received by a contractor in

bad faith in relation to modifications which have been prohibited

by the Director. Such action shall not be subject to any prescriptive

period.

A contractor shall desist from executing a modification

which requires the approval of the Director unless the contracting

authority provides him with a written confirmation of the said

approval. If the contractor carries out 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 by the Director or

when the contracting authority proceeded with the modification

without seeking the prior approval of the Director. Any payments

received by the contractor in this regard may be restored in the

same manner as provided in regulation 255.

When approving a modification, the Director must indicate

t h e f i n a n ci al r a t e o r a n y s u m w h i ch s h o u l d b e p a i d b y t h e

contracting authority in respect of that modification and the time-

frame when such modification should be executed.

(1) Disputes between the contracting authority and the

contractor on whether a particular task forms part of the contract or

else constitutes a modification to the original contract shall not

delay or suspend the continuation of contract, however the

contractor shall have the right to assert his claim against the

contracting authority to receive additional payment for that task if

it results that it does not form part of the original contract.

(2) Such action for additional compensation by the contractor

shall be barred by prescription on the lapse of two years to be

reckoned from the day when the contractor becomes aware or could

have become aware of that task.

A contractor cannot claim any increase whatsoever in price

of commodities to be used in a public contract unless otherwise

provided in the procurement document.

(1) Contracting authorities falling under Schedule 3 shall

obtain the prior approval of the head of their contracting authority

instead of that of the Director when carrying out a modification.

(2) Contracting authorities falling under Schedule 16 must, as

long as the call for tenders has been published by the Sectoral

Procurement Directorate, obtain the prior approval of, or the

preliminary permission from, their Permanent Secretary instead of

that of the Director when carrying out modifications.

Termination of Contacts

(1) Contracting authorities inter alia can terminate any

contract during its term, where

(a) the contract has been subject to a substantial

modification, which would have required a new

procurement procedure pursuant to regulation 246;

(b) the contractor has, at the time of contract award, been

in one of the situations referred to in regulation 192

and should therefore have been excluded from the

procurement procedure;

(c) the contract should not have been awarded to the

contractor in view of a serious infringement of the

obligations under the Treaties and Directive 2014/24/

EU of the European Parliament and of the Council of

26 February 2014 on public procurement and repealing

Directive 2004/18/EC that has been declared by the

Court of Justice of the European Union in a procedure

pursuant to Article 258 of the TFEU;

(d) the contractor fails to discharge any obligation which

he has contracted.

(2) If the contracting authority 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 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.

(5) The contract shall be immediately terminated when the

contracting authority informs the contractor, by any means

whatsoever, of its decision to terminate the contract, and this

without the need of any authorization or confirmation by any court

or board.

(6) Contracting authorities listed under Schedule 16 must, in so

far as the call for tenders has been published by the Sectoral

Procurement Directorate, obtain the approval of their Permanent

Secretary before terminating a contract.

PUBLIC PROCUREMENT

(7)

(a) The Director has the right to issue a decision

terminating any contract or agreement that could have

been reached or signed with a contractor if it transpires

that the award of that contract has been made in breach

of these regulations or else by discriminating between

economic operators.

(b) The decision leading to the termination of the contract

in accordance with this sub-regulation must be made in

writing and must include the findings and the reasons.

(c) A copy of this decision must be delivered to the

contractor, who has the right to contest it by filing a

compliant before the Review Board as explained under

regulation 283.

(d) The termination of the contract will remain suspended

as long as the time limit for the submission of the

complaint in front of the Review Board or the Court of

Appeal lapses and during the duration of these same

procedures.

(e) A contractor 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 contractor will have the right to receive

compensation he deserves for the work that he

demonstrates to have carried out.

Part IX

Remedies

Remedies before Closing Date of a Call for Competition

(1) Prospective candidates and tenderers may, within the first

two-thirds of the time period allocated in the call for competition for

the submission of offers, file a reasoned application before the Public

Contracts Review Board

(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 contract 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 contract documents, in

clarifications notes or in any other document relating

to the contract 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.

(2) The application shall only be valid if accompanied by a

deposit equivalent to zero point five per cent (0.50%) of the

estimated value set by the contracting authority 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 more

than fifty thousand euro (€50,000) which may be refunded as the

Public Contracts Review Board may decide in its decision.

(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 and, or the Director about this request.

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

or tenderers to visit the website of the Public Contracts Review

Board and be aware of the latest information published online.

The contracting authority 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

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 284, 285, 286, 288 and 290.

Pending the decision of the Public Contracts Review Board

the process of the call for tenders shall be suspended.

In its final decision the Public Contracts Review Board

must always establish the new deadline for the submission of

tenders.

The contracting authority shall abide by 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.

Deleted by Legal Notice 196 of 2020.

Appeals from decisions taken after the closing date

for the submissions of an offer

Where the estaimated value of the public contract meets or

exceeds five thousand euro (€5,000) any tenderer or candidate

concerned, or any person, having or having had an interest or who

has been harmed or risks being harmed by an alleged infringement

or by any decision taken including a proposed award in obtaining a

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

following the date on which the contracting authority or the

authority responsible for the tendering process has 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 tenderer or candidate

concerned of the proposed award or of the cancellation of the call

for tenders shall be accompanied by a summary of the relevant

reason s relatin g to the r ejection of t he tend er as set out in

regulation 242 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 equivalent to 0.50 per cent of the estimated value set by the

contracting authority 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

i m m e d i a t e l y n o t i f y t h e D i r e c t o r, t h e Sectoral Procurement

Directorate and, or the contracting authority, as the case may be,

th at an objection had b een f iled with his au thorit y thereby

immediately suspending the award procedure.

The Department of Contracts, the Sectoral Procurement

Directorate or the contracting authority involved, as the case may

be, shall be precluded from concluding the 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 General Contracts Committee, the

Sectoral Procurement Directorate or the Special

Contracts Committee or by the contracting authority,

shall be made public by affixing it to the notice-board

of the Department of Contracts, the Sectoral

Procurement Directorate or of the office of the

contracting authority, as the case may be, or by

uploading it on government’s e-procurement platform

prior to the award of the contract if the call for tenders

is administered by the Department of Contracts;

(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 and any interested party may,

within ten calendar days from the day on which the

appeal is affixed to the notice board of the Review

Board 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 Review Board and where

applicable they shall also be uploaded on the

government’s e-procurement platform;

(d) the authority responsible for the tendering process

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 and tenders submitted;

(e) the secretary of the Review Board shall inform all the

participants of the call for tenders, the Department of

Contracts, the Sectoral Procurement Directorate and the

contracting authority of the date or dates, as the case

may be, 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 Review Board shall keep a record

of the grounds of each adjournment and of everything

done in each sitting;

(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 or even cancel the call if it

appears to it that this is best in the circumstances of

the case.

Ineffectiveness of a contract

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

application before the Public Contracts Review Board to declare

that a contract with an estimated value which meets or exceeds the

threshold established under Schedule 5 is ineffective.

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

Review Board to declare a signed contract ineffective if the

authority responsible for the tendering process has awarded a

contract without prior publication of a contract notice in the

O ff i c i a l Jo ur n a l o f t h e E u r o pe a n Un i o n w i th o u t t h is b e in g

permissible in accordance with Directive 2014/23/EC, Directive

2014/24/EC and Directive 2014/25/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, the authority

responsible for the tendering process 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 authority responsible for the tendering

process before the expiry of the period for the filing of

an appeal as provided for in regulation 271.

(4)

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

(a) the authority responsible for the tendering process or

the contracting authority 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 2014/24/EC

and Directive 2014/25/EC;

(b) the authority responsible for the tendering process or

the contracting authority has published in the Official

Journal of the European Union a notice as described in

Article 3a of Directive 89/665 or Article 3a of

Directive 92/13 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.

(5) An interested party or a bidder cannot proceed before a

court or tribunal to challenge an award or a lack of award of a call

for tender processed according to these regulations and they cannot

ask for damages unless they have first resorted to all the remedies

afforded under these regulations.

Apart from the declaration for the ineffectiveness of a

contract the applicant may request the Public Contracts Review

Board to liquidate and order the authority responsible for the

tendering process and the contracting authority to compensate him

for actual damages suffered.

The application must be served to the authority responsible

for the tendering process, the contracting authority and to all

signatories of the 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 authority

responsible for the tendering process and the contracting authority

after assessing in its decision all relevant factors, including the

seriousness of the infringem ent and the behaviour of those

authorities.

(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 277, 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 authority responsible for

the tendering process and the contracting authority or

the central government authority, 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 278 shall not be considered as an appropriate alternative

penalty for the purposes of this regulation.

Applications for the ineffectiveness of a contract shall be

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 authority responsible for the tendering

process or the contracting authority 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 authority responsible for the tendering

process or the contracting authority informed the

tenderers and candidates concerned of the

signing 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 signing of the contract.