PUBLIC PROCUREMENT OF ENTITIES OPERATING IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS REGULATIONS

PUBLIC PROCUREMENT OF ENTITIES IN THE WATER,

ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

SUBSIDIARY LEGISLATION 601.05

PUBLIC PROCUREMENT OF ENTITIES

OPERATING IN THE WATER, ENERGY, TRANSPORT

AND POSTAL SERVICES SECTORS REGULATIONS

28th October, 2016

LEGAL NOTICE 351 of 2016, as amended by Legal Notices 26 of 2018, 46 of 2019, 196 of

2020, 26 of 2022, 226 of 2023 and 362 of 2024.

The title of these regulations is the Public Procurement of

Entities operating in the Water, Energy, Transport and Postal

Services Sectors Regulations.

Part I

General Provisions

Interpretation and Scope

(1)

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" shall have the same meaning as that given

in the Public Procurement Regulations;

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

the following characteristics

(a) they are established for the specific purpose of

meeting needs in the general interest, not having an

industrial or commercial character;

(b) they have legal personality; and

(c) they are financed, for the most part, by the State,

regional or local authorities, or by other bodies

governed by public law; or are subject to management

supervision by those 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;

"central purchasing body" means a contracting entity providing

centralised purchasing activities and, possibly, ancillary purchasing

activities

Provided that procurement carried out by a central

purchasing body in order to perform centralised purchasing

activities shall be deemed to be procurement for the pursuit of an

activity as described in regulations 7 to 13. Regulation 15 shall not

apply to procurement carried out by a central purchasing body in

order to perform centralised purchasing activities;

"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;

"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

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 ti f i c a t i o n a nd i n s pe c ti o n a c c r e d i t e d in a c c o r d a n c e w i t 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;

"contract award notice" means a 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;

" c o n t r a c t i n g a u t h o r i t i e s " m e a n s St a t e , r e g i o n a l o r l o c a l

authorities, bodies governed by public law or associations formed

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

governed by public law;

"Contracts Committees" means the General Contracts Committee

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 30(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;

"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;

"electronic means" means electronic equipment for the

processing (including digital compression) and storage of data

which is transmitted, conveyed and received by wire, by radio, by

optical means or by other electromagnetic means;

"E u r o p e a n t e ch n i ca l a s se ss m e n t " m e a n s t h e d o cu m e n t ed

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" shall have the same meaning as that given

under the Public Procurement Regulations;

"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 entity 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 m aintenance,

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;

"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;

"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;

"non-compliant tender" means a tender which does not conform

to the terms and conditions specified in the notice or EU notice to

tender or in the procurement documents themselves;

"notice" means a notice published in the Gazette;

"prior information notices" means a notice published in the

Official Journal;

"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 s e 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 entity to describe or determine elements of the

procurement or the procedure, including the contract notice, the

periodic indicative notice or the notices on the existence of a

qualification system where they are used as a means of calling for

competition, the technical specifications, the descriptive document,

proposed conditions of contract, formats for the presentation of

documents by candidates and tenderers, information on generally

applicable obligations and any additional documents;

"procurement service provider" means a public or private body

which offers ancillary purchasing activities on the market;

"Public Contracts Review Board" means the Public Contracts

Review Board as established under the Public Procurement

Regulations;

"regional authorities" includes authorities listed non-

exhaustively in NUTS 1 and 2, as referred to in Regulation (EC) No

1059/2003 of the European Parliament and of the Council;

"Review Board" shall have the same meaning as in the Public

Procurement Regulations;

"service contracts" means contracts having as their object the

provision of services other than those referred to in the definition

"works contracts";

"SME" shall be understood as defined in Commission

Recommendations 2003/361/EC of 6 May 2003 concerning the

definition of micro, small and medium-sized enterprises;

"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;

"supply, works and service contracts" are contracts for pecuniary

interest concluded in writing between one or more of the

contracting entities referred to in sub-regulation (2), and one or

more contractors, suppliers, or service providers;

"supply contracts" means contracts having as their object the

purchase, lease, rental or hire-purchase, with or without an option

to buy, of products. A supply contract may include, as an incidental

matter, siting and installation operations;

"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 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 entity; 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

conditions for works and methods or techniques of

construction and all other technical conditions which

the contracting entity 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 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;

"unacceptable tenders" means 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;

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

"a 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;

"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 of Schedule 1;

(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 entity exercising a decisive influence on

the type or design of the work;

"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.

(2)

"Contracting entities" are entities which

(a) are contracting authorities or public undertakings and

which pursue one of the activities referred to in

regulations 8 to 14;

(b) when they are not contracting authorities or public

undertakings, have as one of their activities any of the

activities referred to in regulations 7 to 13, or any

combination thereof and operate on the basis of special

or exclusive rights granted by a competent authority.

(3)

(a) "Public undertaking" means any undertaking over

which the contracting authorities may exercise directly

or indirectly a dominant influence by virtue of their

ownership of it, their financial participation therein, or

the rules which govern it.

(b) A dominant influence on the part of the contracting

authorities shall be presumed in any of the following

cases in which those authorities directly or indirectly -

(i)

hold the majority of the undertaking’s

subscribed capital;

(ii) control the majority of the votes attaching to

shares issued by the undertaking;

(iii) can appoint more than half of the undertaking’s

administrative, management or supervisory

body.

(4)

For the purpose of sub-regulations (2) and (3)

(a) special or exclusive rights means rights granted by a

competent authority by way of any legislative,

regulatory or administrative provision the effect of

which is to limit the exercise of activities defined in

regulations 7 to 13 to one or more entities, and which

substantially affects the ability of other entities to

carry out such activity;

(b) rights which have been granted by means of a

procedure in which adequate publicity has been

ensured and where the granting of those rights was

based on objective criteria shall not constitute special

or exclusive rights within the meaning of paragraph

(a). Such procedures include

(i) procurement procedures with a prior call for

competition in conformity with the Public

Procurement Regulations, the Concession

Contracts Regulations, these regulations or the

Public Procurement of Contracting Authorities

or Entities in the fields of Defence and Security

Regulations;

(ii) procedures pursuant to other legal acts of the

Union listed in Schedule 2, ensuring adequate

prior transparency for granting authorisations on

the basis of objective criteria.

The scope of these regulations is that of regulating the

procurement by contracting entities operating in the water, energy,

transport and postal services sectors.

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.

For the purposes of regulations 7, 8 and 9 "supply" shall

include generation or production, wholesale and retail sale, while

production of gas in the form of extraction falls within the scope of

regulation 13.

(1) As far as gas and heat are concerned, these regulations

shall apply to the following activities

(a) the provision or operation of fixed networks intended

to provide a service to the public in connection with

the production, transport or distribution of gas or heat;

(b) the supply of gas or heat to such networks.

(2) The supply of gas or heat to networks which provide a

service to the public by a contracting entity other than a contracting

authority shall not be considered a relevant activity within the

meaning of sub-regulation (1) where

(a) the production of gas or heat by the entity concerned is

the unavoidable consequence of carrying out an

activity other than those referred to in sub-regulation

(1) of this regulation or in regulations 8 to 10;

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

economic exploitation of such production and amounts

to not more than twenty per cent of the entity’s

turnover having regard to the average for the

preceding three years, including the current year.

(1) As far as electricity is concerned, these regulations

shall apply to the following activities

(a) the provision or operation of fixed networks intended

to provide a service to the public in connection with

the production, transport or distribution of electricity;

(b) the supply of electricity to such networks.

(2) The supply of electricity to networks which provide a

service to the public by a contracting entity other than a contracting

authority shall not be considered a relevant activity within the

meaning of sub-regulation (1) where all of the following conditions

are met

(a) the production of electricity by the contracting entity

concerned takes place because its consumption is

necessary for carrying out an activity other than those

referred to in sub-regulation (1), or in regulations 7, 9

and 10;

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

contracting entity’s own consumption and has not

exceeded thirty per cent of the contracting entity’s

total production of energy, on the basis of the average

for the preceding three years, including the current

year.

(1) As far as water is concerned, these regulations shall

apply to the following activities

(a) the provision or operation of fixed networks intended

to provide a service to the public in connection with

the production, transport or distribution of drinking

water;

(b) the supply of drinking water to such networks.

(2) These regulations shall also apply to contracts or design

contests awarded or organised by contracting entities which pursue

an activity referred to in sub-regulation (1) and which

(a) are connected with hydraulic engineering projects,

irrigation or land drainage, provided that the volume

of water to be used for the supply of drinking water

represents more than twenty per cent of the total

volume of water made available by such projects or

irrigation or drainage installations;

(b) are connected with the disposal or treatment of

sewage.

(3) The supply by a contracting entity other than a contracting

authority, of drinking water to fixed networks which provide a

service to the public shall not be considered as a relevant activity

within the meaning of sub-regulation (1) where

(a) the production of drinking water by the entity

concerned takes place because its consumption is

necessary for carrying out an activity other than those

referred to in regulations 7 to 10;

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

contracting entity’s own consumption and has not

exceeded thirty per cent of the contracting entity’s

total production of drinking water, on the basis of the

average for the preceding three years, including the

current year.

(1) These regulations shall apply to activities relating to

the provision or operation of networks providing a service to the

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

tramway, trolley bus, bus or cable.

(2) As regards transport services, a network shall be considered

to exist where the service is provided under operating conditions

laid down by a competent authority, such as conditions on the

routes to be served, the capacity to be made available or the

frequency of the service.

These regulations shall apply to activities relating to the

PUBLIC PROCUREMENT OF ENTITIES IN THE WATER,

ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

exploitation of a geographical area for the purpose of the provision

or operation of airports and maritime or inland ports or other

terminal facilities to carriers by air, sea or inland waterway.

(1) These regulations shall apply to activities relating to

the provision of

(a) postal services;

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

that such services are provided by an entity which also

provides postal services within the meaning of sub-

regulation (2)(b) and provided that the conditions set

out in regulation 24(1) and (2) are not satisfied in

respect of the services falling within sub-regulation

(2)(b).

(2) For the purpose of this regulation and without prejudice to

Directive 97/67/EC

(a) "postal item" means an item addressed in the final

form in which it is to be carried, irrespective of

weight. In addition to items of correspondence, such

items also include for instance books, catalogues,

newspapers, periodicals and postal packages

containing merchandise with or without commercial

value, irrespective of weight;

(b) "postal services" means services consisting of the

clearance, sorting, routing and delivery of postal

items. This shall include both services falling within as

well as services falling outside the scope of the

universal service set up in conformity with Directive

97/67/EC;

(c) "other services, other than postal services" means

services provided in the following areas

(i)

mail service management services (services both

preceding and subsequent to despatch, such as

mailroom management services);

(ii) services concerning postal items not included in

sub-regulation (2)(a), such as direct mail bearing

no address.

(1) These regulations apply to activities relating to the

exploitation of a geographical area for the purpose of

(a) extracting oil or gas;

(b) exploring for, or extracting, coal or other solid fuels.

(2) These regulations do not apply to activities relating to the

exploration for oil and gas.

(3)

For the purpose of this regulation

(a) "exploration" should be considered to include the

activities that are undertaken in order to verify

whether oil and gas is present in a given zone and if so

whether it is commercially exploitable;

(b) "extraction" should be considered as the "production"

of oil and gas;

(c) "production" should be considered to include the

setting up of adequate infrastructure for future

production of oil such as oil platforms, pipelines, and

terminals.

(1) This regulation shall apply to tenders covering

products originating in third countries with which the Union has

not concluded, whether multilaterally or bilaterally, an agreement

ensuring comparable and effective access for Union undertakings

to the markets of those third countries.

(2) Any tender submitted for the award of a supply contract

may be rejected where the proportion of the products originating in

third countries as determined in accordance with Regulation (EU)

No 952/2013 of the European Parliament and of the Council of 9th

October 2013, exceeds fifty per cent of the total value of the

products constituting the tender.

(3) Software used in telecommunications network equipment

shall be regarded as products.

(4) Subject to the provisions of sub-regulation (2), where two

or more tenders are equivalent in the light of the contract award

criteria defined in regulation 170, preference shall be given to those

tenders which may not be rejected pursuant to sub-regulation (2).

The prices of those tenders shall be considered equivalent for the

purposes of this regulation if the price difference does not exceed

three per cent.

(5) A tender shall not be preferred to another pursuant to the

sub-regulation (1) where its acceptance would oblige the

contracting entity to acquire equipment having technical

characteristics different from those of existing equipment, resulting

i n i n c o m p a t i b i l i t y, t e c h n i c a l d i ff i c u l t i e s i n o p e r a t i o n a n d

maintenance or disproportionate costs.

(6) For the purposes of this regulation, third countries to which

the benefit of these regulations has been extended by a Council

Decision in accordance with sub-regulation (1) shall not be taken

into account for determining the proportion, referred to in sub-

regulation (2), of products originating in third countries.

(1) These regulations shall not apply to contracts awarded

for purposes of resale or lease to third parties, provided that the

contracting entity enjoys no special or exclusive right to sell or

lease the subject of such contracts, and other entities are free to sell

or lease it under the same conditions as the contracting entity.

(2) The contracting entities shall notify the Commission if so

requested of all the categories of products or activities which they

regard as excluded under sub-regulation (1).

(1) These regulations shall not apply to contracts which

the contracting entities award for purposes other than the pursuit of

their activities as described in regulations 7 to 13 or for the pursuit

of such activities in a third country, in conditions not involving the

physical use of a network or geographical area within the Union

nor to design contests organised for such purposes.

(2) The contracting entities shall notify the Commission if so

requested of all the categories of products or activities which they

regard as excluded under sub-regulation (1).

(1) These regulations shall not apply to contracts or design

contests which the contracting entity 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

(a) a legal instrument creating international law

obligations, such as an international agreement,

concluded in accordance 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;

(b) an international organisation;

(c) contracts and design contests which the contracting

entity awards or organises in accordance with

procurement rules provided by an international

organisation or international financing institution,

where the contracts or design contests concerned are

fully financed by that organisation or institution; in the

case of contracts or design contests co-financed the

most part by an international organisation or

international financing institution the parties shall

agree on applicable procurement procedures

Provided that for design contests, falling under this

regulation, and having an estimated value which meets

or exceeds the thresholds established under Schedule

5, the contracting entity shall communicate all legal

instruments referred to in paragraph (a) to the

Commission.

(2) The provisions of regulation 23 shall apply to contracts and

design contests involving defence or security aspects which are

awarded or organised pursuant t o int ern atio nal rules. S u b-

regulation (1) shall not apply to those contracts and design

contests.

(1) These regulations shall not apply to

(a) acquisition or rental, by whatever financial means, or

land, existing buildings or other immovable property

or concerning rights thereon;

(b) arbitration and conciliation services;

(c) 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;

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

proceedings referred to in paragraph (c) 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;

(e) document certification and authentication services

which must be provided by notaries;

(f)

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;

(g) other legal services which are connected, even

occasionally, with the exercise of official authority;

(h) 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;

(i)

loans, whether or not in connection with the issue,

sale, purchase or transfer of securities or other

financial instruments;

(j)

employment contracts;

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

(l)

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;

(m) contracts for broadcasting time or programme

provision that are awarded to audiovisual or radio

media service providers;

(n) 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;

(o) when it is approved by the Commission in line with

Article 35 of Directive 2014/25/EU.

(2)

For the purposes of this regulation

"media service providers", limitedly for the purpose of sub-

regulation (1)(m) 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".

These regulations shall not apply to service contracts

awarded to an entity which is itself a 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.

These regulations shall not apply to

(a) contracts for the purchase of water if awarded by

contracting entities engaged in one or both of the

activities relating to drinking water referred to in

regulation 9(1);

(b) contracts awarded by contracting entities themselves

being active in the energy sector by being engaged in

an activity referred to in regulation 7(1), regulation

8(1) or regulation 13 for the supply -

(i) of energy;

(ii) of fuels for the production of energy.

(1) These regulations shall not apply to contracts falling

within the scope of Public Procurement of Contracting Authorities

or Entities in the fields of Defence and Security Regulations as well

as to contracts to which the said regulations do not apply pursuant

to regulations 9, 13 and 14 thereof.

(2) Contracts and design contests not otherwise exempted

under sub-regulation (1) 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 entity makes available in a contract award procedure as

provided for in these regulations.

(3) These regulations shall also not apply to contracts and

design contests not otherwise exempted under sub-regulation (1) to

the extent that the application of these regulations would oblige

Malta to disclose and supply information which it considers

contrary to the essential interests of its security.

These regulations shall not apply to contracts or design

contests which are declared to be secret or must be accompanied by

special security measures in accordance with the laws of Malta

provided that it has been determined that the essential interests

concerned cannot be guaranteed by less intrusive measures such as

those described in regulation 21(2).

(1) These regulations shall not apply to contracts or design

contests involving defence or security aspects which the

contracting entity 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

(a) an international agreement or arrangement, concluded

in accordance with the Treaties, between Malta 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;

(b) an international agreement or arrangement relating to

the stationing of troops and concerning the

undertakings of Malta or a third country;

(c) an international organisation.

(2) All agreements or arrangements referred to in sub-

regulation (1)(a) shall be communicated to the Commission.

(3) These regulations shall not apply to contracts and design

contests involving defence or security aspects which the

contracting entity awards in accordance with procurement rules

provided by an international organisation or international financing

institution, where the contracts or design contests concerned are

fully financed by this organisation or institution. In the case of

contracts or design contests co-financed for the most part by an

international organisation or international financing institution the

parties shall agree on applicable procurement procedures.

(1) Contracts intended to enable an activity mentioned in

regulations 7 to 13 to be carried out shall not be subject to these

regulations if the contracting entities, having introduced the request

pursuant to regulation 25, can demonstrate that, in Malta, the

activity is directly exposed to competition on markets to which

access is not restricted; nor shall design contests that are organised

for the pursuit of such an activity in that geographic area be subject

to these regulations.

(2) The activity concerned may form part of a larger sector or

be exercised only in certain parts of Malta. The competition

assessment referred to in sub-regulation (1) is without prejudice to

the application of competition law. Such assessment shall be made

having regard to the market for the activities in question and the

geographical reference market within the meaning of sub-

regulations (3) and (4).

(3) For the purposes of sub-regulations (1) and (2), the

question of whether an activity is directly exposed to competition

shall be decided on the basis of criteria that are in conformity with

the TFEU provisions on competition, such as the characteristics of

the goods or services concerned, the existence of alternative goods

or services considered to be substitutable on the supply side or

demand side, the prices and the actual or potential presence of more

than one supplier of the goods or services in question.

(4) The geographical reference market, on the basis of which

exposure to competition is assessed, shall consist of the area in

which the undertakings concerned are involved in the supply and

demand of products or services, in which the conditions of

competition are sufficiently homogeneous and which can be

distinguished from neighbouring areas because, in particular,

conditions of competition are appreciably different in those areas.

That assessment shall take account in particular of the nature and

characteristics of the products or services concerned of the

e x i s t e n c e o f en t r y b ar r i e r s o r o f c o n su m e r p r ef e r e n c es , o f

appreciable differences of the undertakings; market shares between

the area concerned and neighbouring areas or of substantial price

differences.

(5) For the purposes of sub-regulations (1) and (2), access to a

market shall be deemed not to be restricted if Malta has

implemented and applied the provisions of Community legislation

mentioned in Schedule 3.

(6) If free access to a given market cannot be presumed on the

basis of the provisions of sub-regulation (5). it must be

demonstrated that access to the market in question is free de facto

and de jure.

(1) Where a contracting entity considers that, on the basis

of the criteria set out in regulation 24(3), (4), (5) and (6), a given

activity is directly exposed to competition on markets to which

access is not restricted, it may submit a request to the Commission

to establish that these regulations do not apply to the award of

contracts or the organisation of design contests for the pursuit of

that activity, where appropriate together with the position adopted

by an independent national authority that is competent in relation to

the activity concerned.

(2) The requests in sub-regulation (1) may concern activities

which are part of a larger sector or which are exercised only in

certain parts of Malta.

(3) In the request, the contracting entity concerned shall inform

the Commission of all relevant facts, and in particular of any law,

regulation, administrative provision or agreement concerning

compliance with the conditions set out in regulation 24(1) and (2).

(4) Unless a request coming from a contracting entity is

accompanied by a reasoned and substantiated position, adopted by

an independent national authority that is competent in relation to

the activity concerned, which thoroughly analyses the conditions

for the possible applicability of regulation 24(1) and (2) to the

activity concerned in accordance with regulation 24(3), (4), (5) and

(6), the Commission shall immediately inform the Member State

concerned. The Member State through the contracting entity shall

in such cases inform the Commission of all relevant facts, and in

particular of any law, regulation, administrative provision or

agreement concerning compliance with the conditions set out in

regulation 24(1) and (2).

(5) Upon a request submitted in accordance with sub-

reg ul a t io ns (1 ) a n d ( 2) , t he Co mm i s s io n m a y, by m e a ns of

implementing acts adopted within the periods set out in Schedule 6,

establish whether an activity referred to in regulations 7 to 13 is

directly exposed to competition on the basis of the criteria set out

in regulation 24.

(6) Contracts intended to enable the activity concerned to be

carried out and design contests that are organised for the pursuit of

such an activity shall cease to be subject to these regulations in any

of the following cases

(a) the Commission has adopted the implementing act

establishing the applicability of regulation 24(1) and

(2) within the period provided for in Schedule 6;

(b) the Commission has not adopted the implementing act

within the period provided for in Schedule 6.

After the submission of a request, the Member State or the

c o n t r a c t i n g e n t i t y c o n c e r n e d m a y, w i t h t h e C o m m i s s i o n ’s

agreement, substantially modify its request, in particular as regards

the activities or the geographical areas concerned. In that case, a

new period for the adoption of the implementing act shall apply,

which shall be calculated in accordance with paragraph 1 of

Schedule 9, unless a shorter period is agreed on by the Commission

and the contracting entity which has presented the request.

When an activity is already the subject of a procedure under

this title, further requests concerning the same activity before the

expiry of the period opened in respect of the first request shall not

be considered as a new procedure and shall be treated in the context

of the first request.

The Commission shall adopt an implementing act

establishing detailed rules. That implementing act shall include

rules relating to

(a) the publication in the Official Journal of the European

Union, for information of the date on which the period

set out in paragraph 1 of Schedule 6 begins and ends,

including any prolongations or suspensions of those

periods, as provided for in the same schedule;

(b) publication of the possible applicability of regulation

24(1) and (2);

(c) implementing provisions concerning the form, content

and other details of requests pursuant to regulation

25(1), (2) and (3).

(1) Subject to the provisions of Part III, a public contract,

having an estimated value which falls under regulation 30(1)(b),

awarded by a contracting authority to a legal person governed by

p r i v a t e o r p u b l ic l a w, s h a ll f a l l o u ts i d e t h e s c o p e o f t he s e

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 eighty per cent of the activities of the

controlled legal person are carried out in the

performance of tasks entrusted to it by the controlling

contracting authority or by other legal persons

controlled by that contracting authority;

(c) there is no direct private capital participation in the

controlled legal person with the exception of non-

controlling and non-blocking forms of private capital

participation required by national legislative

provisions, in conformity with the Treaties, which do

not exert a decisive influence on the controlled legal

person.

(2) A contracting authority shall be deemed to exercise over a

legal person a control similar to that which it exercises over its own

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

exercises a decisive influence over both strategic objectives and

significant decisions of the controlled legal person. Such control

may also be exercised by another legal person, which is itself

controlled in the same way by the contracting authority.

(3) The provisions of sub-regulations (1) and (2) also apply

where a controlled 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.

(4) A contracting authority, which does not exercise over a

legal person governed by private or public law control within the

meaning of sub-regulations (1) and (2), may nevertheless award a

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 eighty per cent of the activities of that legal

person are carried out in the performance of tasks

entrusted to it by the controlling contracting

authorities or 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.

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

authorities shall be deemed to 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;

(c) the controlled legal person does not pursue any

interests which are contrary to those of the controlling

contracting authorities.

(6) 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 met

(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;

(c) the participating contracting authorities perform on the

open market less than twenty per cent of the activities

concerned by the cooperation.

(7)

For the determination of the percentage of activities

referred to in sub-regulation (1)(b), sub-regulation 4(b), and sub-

regulation (6)(c), the average total turnover, or an appropriate

alternative activity based measure such as costs incurred by the

relevant legal person with respect to services, supplies and works

for the three years preceding the contract award shall be taken into

consideration.

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

person 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 four hundred

forty three thousand euro (€443,000), shall be issued,

administered and determined by the contracting

authorities without the involvement of the Director;

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

threshold of that four hundred forty three thousand euro

(€443,000) shall be issued, administered and

determined by the Director on behalf of the contracting

authority

Provided that public contracts required by Enemalta plc

or by the Water Services Corporation shall be issued,

administered and determined by it on their own without

the involvement of the Director, subject to the provisions

set out in these regulations, including but not limited to

the right of appeal.

(2) 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.

Affiliated Undertakings

(1) Notwithstanding the provisions of regulation 29, and

provided that the conditions in sub-regulation (2) of this regulation

are met, these regulations shall not apply to contracts awarded

(a) by a contracting entity to an affiliated undertaking;

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

contracting entities for the purpose of carrying out

activities described in regulations 7 to 13, to an

undertaking which is affiliated with one of those

contracting entities.

(2)

The provisions of sub-regulation (1) shall apply to

(a) service contracts provided that at least eighty per cent

of the average total turnover of the affiliated

undertaking over the preceding three years, taking into

account all services provided by that undertaking,

derives from the provision of services to the

contracting entity or other undertakings with which it

is affiliated;

(b) supply contracts provided that at least eighty per cent

of the average total turnover of the affiliated

undertaking, taking into account all supplies provided

by that undertaking, over the preceding three years

derives from the provision of supplies to the

contracting entity or other undertakings with which it

is affiliated;

(c) to works contracts provided that at least eighty per

cent of the average total turnover of the affiliated

undertaking, taking into account all works provided by

that undertaking, over the preceding three years

derives from the provision of works to the contracting

entity or other undertakings with which it is affiliated.

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

undertaking was created or commenced activities, the turnover is

not available for the preceding three years, it shall be sufficient for

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

regulation (2)(a), (b) or (c) of credible, in particular by means of

business, projections.

(4) Where more than one undertaking affiliated with the

contracting entity with which they form an economic group

provides the same or similar services, supplies or works, the

percentages shall be calculated taking into account the total

turnover deriving respectively from the provision of services,

supplies or works by those affiliated undertakings.

(5) For the purposes of this regulation, "affiliated undertaking"

means any undertaking the annual accounts of which are

consolidated with those of the contracting entity in accordance with

the requirements of the Directive 2013/34/EU.

(6) In the case of entities, which are not subject to Directive

2013/34/EU, "affiliated undertaking" shall mean any undertaking

that

(a) may be, directly or indirectly, subject to a dominant

influence by the contracting entity;

(b) may exercise a

dominant

influence

over

the

contracting entity;

(c) in common with the contracting entity, is subject to the

dominant influence of another undertaking by virtue of

ownership, financial participation, or the rules which

govern it.

(7) For the purposes of sub-regulation (6), the term "dominant

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

Notwithstanding the provisions of regulation 29, and

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

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

the instrument setting up the joint venture stipulates that the

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

the same period, these regulations shall not apply to contracts

awarded by any of the following

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

contracting entities for the purpose of carrying out

activities within the meaning of regulations 7 to 13, to

one of those contracting entities;

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

it forms part.

The Office of the Director of Contracts

The provisions of regulations 10, 11, 12, 14 and 15 of the

Public Procurement Regulations shall mutatis mutandis apply to

these regulations.

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 30(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 177(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 and contracting

entities covered by these regulations, 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 established under

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 14

Provided that the director may decide not to award a

contract to the tenderer submitting the best tender where

he has established that the tender does not comply with

the applicable obligations referred to in this paragraph;

and.

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

later than six months after the end of each financial

year about -

(i)

the performance of the General Contracts

Committee, and of the Special Contracts

Committee 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

General Contracts Committee; and

(ii) 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;

(o) to inform the Commission of

(i)

any general difficulties, in law or in fact,

encountered and reported by undertakings in

PUBLIC PROCUREMENT OF ENTITIES IN THE WATER,

ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

securing the award of service contracts in third

countries;

(ii) any difficulties, in law or in fact, encountered

and reported by undertakings and which are due

to the non-observance of the international labour

law provisions listed in Schedule 14 when those

undertakings have tried to secure the award of

contracts in third countries

Provided that the provisions of sub-paragraphs (i) and

(ii) shall be without prejudice to the commitments of

the Union in relation to third countries ensuing from

international agreements on public procurement

particularly within the framework of the WTO.

The Contracting Authority

It shall be the duty of all contracting authorities

(a) to observe and abide by these regulations;

(b) to administer their own procurement when the

estimated values of such a procurement falls under the

threshold established in regulation 30(1)(a);

(c) to draw up procurement documents and all relevant

supporting documentation

Provided that when a contracting authority needs to

publish a procurement process with an estimated value

which falls under the threshold established under

regulation 30(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 authorised in writing by the Director;

(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 its 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 signed by

them or on their behalf and to defend in front of any

court or tribunal any issue 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 14

Provided that the Contracting authority or contracting

entity as the case maybe may decide not to award a

contract to the tenderer submitting the best tender where

they have established that the tender does not comply

with the applicable obligations referred to in this

paragraph.

(l)

to notify the Commission, if so requested by the latter,

the following information regarding the application of

regulation 31(1) and (6) and regulation 32

(i)

the names of the undertakings or joint ventures

concerned;

(ii) the nature and value of the contracts involved;

(iii) proof deemed necessary by the Commission that

the relationship between the undertaking or joint

venture to which the contracts are awarded and

the contracting entity complies with the

requirements of regulation 31 or 32.

(1) When an Evaluation Committee is appointed by a

contracting authority or a contracting entity governed by these

regulations, the Evaluation Committee shall draw up an evaluation

report and communicate the report as follows

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

threshold established under regulation 30(1)(a), the

individual report shall be addressed to the

Departmental Contracts Committee and shall be drawn

in terms of the provisions of Part III;

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

threshold established under regulation 30(1)(b), the

individual report shall be addressed to the Director and

shall be drawn in terms of regulation 172.

For tenders with an estimated value which falls under the

threshold established in regulation 30(1)(b), a contracting authority

can impose or remit penalties only after obtaining the permission of

the Director.

Centralised purchasing activities 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 entity can acquire supplies and, or

services from a central purchasing body intended for contracting

entities,

(2) Contracting entities 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 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 entities, this shall be mentioned

in the call for competition setting up that dynamic purchasing

system.

(1) When a contracting entity carries out its procurement

under regulation 39, it shall be deemed to have fulfilled its

obligations under these regulations.

(2) A contracting entity 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

(c) by using a framework agreement concluded by the

central purchasing body offering centralised

purchasing activity referred to paragraph (b) of the

definition "centralised purchasing activities" under

regulation 2.

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

contracting entity 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.

(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 70.

(5) Contracting entities 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 ) may al so i ncl ud e th e p ro vi si on of a ncil lary pu rch asing

activities.

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

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

entities may agree to perform certain specific procurements jointly.

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

under the threshold established under regulation 30(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 entities concerned, they shall be jointly responsible for

fulfilling their obligations pursuant to these regulations. This

applies also in cases where one contracting entity manages the

procedure, acting on its own behalf and on the behalf of the other

contracting entities 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

entities concerned, they shall be jointly responsible only for those

parts carried out jointly. Each contracting entity shall have sole

responsibility for fulfilling its obligations pursuant to these

regulations in respect of the parts it conducts in its own name and

on its own behalf.

(1) A contracting entity 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 30(1)(b), the

application of this regulation shall be subject to what is established

under regulations 25 and 35(n).

(3) A contracting entity may make use of centralised

purchasing activities offered by central purchasing bodies located

in another Member State

Provided that contracting entities 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.

(6) Several contracting entities from different Member States

may jointly award a public contract, conclude a framework

agreement or operate a dynamic purchasing system.

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

international agreement concluded between the Member States

concerned, the participating contracting entities 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.

(8) A participating contracting entity fulfils its obligations

pursuant to these regulations when it purchases works, supplies or

services from a contracting entity which is responsible for the

procurement procedure.

(9) When determining responsibilities and the applicable

national law as referred to in sub-regulation (7)( a ), the

participating contracting entities may allocate specific

responsibilities among them and determine the applicable

provisions of their respective national laws.

(10) The allocation of responsibilities and the applicable

national law shall be referred to in the procurement documents for

jointly awarded public contracts.

(11) Where several contracting entities 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 entities

shall, by a decision of the competent body of the joint entity, agree

o n the app li cabl e na tio nal proc uremen t ru les o f on e o f 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.

(12) The agreement referred to in sub-regulation (11) 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.

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 regulations 134 to 139 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 23, 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 42 to 55, is

equal to or greater than the relevant threshold set out

in Schedule 5.

(4) 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) In the case of contracts intended to cover several

activities, contracting entities may choose to award separate

contracts for the purposes of each separate activity or to award a

single contract.

(2) Where contracting entities choose to award separate

contracts, the decision as to which rules apply to any one of such

separate contracts shall be taken on the basis of the characteristics

of the separate activity concerned.

(3) The choice between awarding a single contract or awarding

a number of separate contracts shall not, however, be made with the

objective of excluding the contract or contracts from the scope of

application of these regulations or where applicable the Public

Procurement Regulations, or the Concession Contracts

Regulations.

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

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

principally intended.

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

i m p o s s i b l e t o d e t e r m in e f o r w h i c h a c t i v i t y t h e c o n t r a c t i s

principally intended, the applicable rules shall be determined as

follows

(a) awarded in accordance with the Public Procurement

Regulations, if one of the activities for which the

contract is intended is subject to these regulations and

the other to Public Procurement Regulations;

(b) awarded in accordance with these regulations, if one of

the activities for which the contract is intended is

subject to these regulations and the other to the Public

Procurement Regulations, for the award of concession

contracts;

(c) awarded in accordance with these regulations, if one of

the activities for which the contract is intended is

subject to these regulations and the other is not subject

to either these regulations, the Public Procurement

Regulations, or the Public Concessions Regulations;

(d) notwithstanding the provisions of regulation 43, where

contracting entities choose to award a single contract,

the provisions of this sub-regulation shall apply;

(e) where one of the activities concerned is covered by

Article 346 of the TFEU or the Public Procurement of

Contracting Authorities or Entities in the fields of

Defence and Security Regulations, regulation 46 shall

apply.

(1) In the case of mixed contracts covering the same

activity which have as their subject-matter procurement covered by

these regulations and procurement covered by Article 346 of the

TFEU or by the regulations governing Public Procurement of

Contracting Authorities or Entities in the fields of Defence and

Security Regulations, this regulation shall apply.

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

separable, contracting entities may choose to award separate

contracts for the separate parts or to award a single contract.

(3) Where contracting entities 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 entities choose to award a single

contract, the following criteria shall apply to determine the

applicable legal regime

(a) where part of a given contract is covered by Article

346 of the TFEU, the contract may be awarded without

applying these regulations, provided that the award of

a single contract is justified for objective reasons;

(b) where part of a given contract is covered by Public

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 the application of this paragraph shall be

without prejudice to the thresholds and exclusions for

which the regulations identified above provide for.

(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, where the contract includes elements to which

Article 346 of the TFEU applies, it may be awarded without

applying these regulations; otherwise it may be awarded in

accordance with the Public Procurement of Contracting Authorities

or Entities in the fields of Defence and Security Regulations.

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

activities, contracting entities may award separate contracts for the

purposes of each separate activity or to award a single contract.

Where contracting entities 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 activity concerned.

(2) Where contracting entities choose to award a single

contract, the provisions of sub-regulation (3) shall apply. The

choice between awarding a single contract and awarding a number

of separate contracts shall not be made with the objective of

excluding the contract or contracts from the scope of these

regulations or the Public Procurement of Contracting Authorities or

Entities in the fields of Defence and Security Regulations.

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

is subject to these regulations and another which is subject to the

Public Procurement of Contracting Authorities or Entities in the

fields of Defence and Security Regulations, the contract may be

awarded in accordance with the Public Procurement of Contracting

Authorities or Entities in the fields of Defence and Security

Regulations

Provided that the provisions of this sub-regulation shall be

without prejudice to the thresholds and exclusions for which the

Public Procurement of Contracting Authorities or Entities in the

fields of Defence and Security Regulations provides.

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

is subject to these regulations and another which is covered by

Article 346 of the TFEU the contract may be awarded without

applying these regulations.

(5) Contracts as set out under sub-regulation (3), which in

addition include procurement or other elements which are covered

by Article 346 of the TFEU, may be awarded without applying

these regulations.

(6) The application of sub-regulations (3), (4) and (5) is subject

to the condition that the award of a single contract is justified for

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

taken for the purpose of excluding contracts from the application of

these regulations.

Contract Value

(1) The calculation of the estimated value of a contract

shall be based on the total amount payable, net of VAT, as estimated

by the contracting entity. This calculation shall take account of the

estimated total amount, including any form of option and any

renewals of the contract.

(2) Where the contracting entity provides for prizes or

payments to candidates or tenderers it shall take them into account

when calculating the estimated value of the contract.

(3) Where the contracting entity is comprised of separate

operational units, account shall be taken of the total estimated

value for all the individual operational units

Provided that 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.

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

value o f a contract shall not be made with the intentio n of

excluding it from the scope of these regulations.

(5) A contract shall not be subdivided with the effect of

preventing it from falling within the scope of these regulations,

unless justified by objective reasons.

(6) The 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 estimated 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 agreement or

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) Contracting entities shall include in the estimated

value of a works contract both the cost of the works and the value

of any supplies or services necessary for the execution of the

works, which they make available to the contractor.

(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) Where the aggregate value of lots is equal to or exceeds the

threshold laid down in Schedule 5, these regulations shall apply to

the awarding of each lot.

(1) 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.

(2) Where the aggregate value of lots is equal to or exceeds the

threshold laid down in Schedule 5, these regulations shall apply to

the awarding of each lot.

(3) For the purpose of this Part, "similar supplies" means

products which are intended for identical or similar uses.

Notwithstanding the provisions of regulation 50(2) and (3),

contracting entities may waive such application in respect of lots

the estimated value of which, net of VAT, is less than €80,000 for

supplies or services or €1,000,000 for works, provided that the

aggregate value of those lots does not exceed twenty per cent of the

aggregate value of the lots as a whole.

The estimated contract value in the renewal of supply or

service contracts which are regular in nature or which are intended

to be renewed within a given period shall be calculated as follows

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

of the same type awarded during the preceding twelve

months or financial year adjusted to take account of

the changes in quantity or value which would occur in

PUBLIC PROCUREMENT OF ENTITIES IN THE WATER,

ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

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.

With regard to supply contracts relating to 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 case of fixed-term contracts, if that term is less than

or equal to twelve months, the total estimated value for

the term of the contract;

(b) in case of fixed-term contracts, if that term is greater

than twelve months, the total value including the

estimated residual value;

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

contracts with a term which cannot be defined, the

monthly value multiplied by 48.

(1) With regard to service contracts, the basis for

calculating the estimated contract value shall be as follows

(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.

(2) With regard to service contracts which do not indicate a

total price, the basis for calculating the estimated contract value

shall be as follows

(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 entities may decide to award a contract in the

form of separate lots and may determine the size and subject-matter

of such lots.

Contracting entities shall indicate, in the contract notice, in

the invitation to confirm interest, or, where the means of calling for

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

in the invitation to tender or to negotiate, whether tenders may be

submitted for one, for several or for all of the lots.

Contracting entities 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, to tender or to negotiate. Contracting entities

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 more than one lot may be awarded to the same

tenderer, contracting entities 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) Unless it has been requested in good time, the contracting

entities 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 open procedure as referred to

in regulation 91(3), the period mentioned in sub-regulation (2) shall

be four days.

(1) Contracting entities shall treat economic operators

equally and without discrimination and shall act in a transparent

and proportionate manner.

(2) 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.

(3) In so far as they are covered by Annexes 3, 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 entities shall accord to the works, supplies, services and

e c o n om i c o p e r a t o rs o f th e s i g na to r i e s t o t ho s e a g re e m e n t s

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 or the

contracting entity to disclose information, a contracting entity and,

or the Director 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 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) the documentation submitted by economic operators

attesting that they comply with selection criteria;

(d) technical information which is already public.

(3) Contracting entities may impose on economic operators

requirements aimed at protecting the confidential nature of

information which the contracting entities make available

throughout the procurement procedure, including information made

available in connection with the operation of a qualification

system, whether or not this has been the subject of a notice on the

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

competition.

Publication

(1) Contracting entities may make known their intentions

of planned procurements through the publication of a periodic

indicative notice. Those notices shall contain the information set

out in Schedule 8, Part A, Section I. They shall be published either

by the Publications Office of the European Union or by the

contracting entities on their buyer profiles in accordance with

regulation 2(b) of Schedule 10. Where the prior information notice

is published by the contracting entities on their buyer profile, they

shall send a notice of the publication on their buyer profile to the

Publications Office of the European Union in accordance with

regulation 3 of Schedule 10. Those notices shall contain the

information set out in Schedule 8, Part B.

(2) When a call for competition is made by means of a periodic

indicative notice in respect of restricted procedures and negotiated

procedures with prior call for competition, the notice shall meet all

the following requirements

(a) it shall refer specifically to the supplies, works or

services that will be the subject of the contract to be

awarded;

(b) it shall indicate that the contract will be awarded by

restricted or negotiated procedure without further

publication of a call for competition and it shall invite

interested economic operators to express their interest;

(c) it shall contain, in addition to the information set out

in section I of Part A of Schedule 8, the information

set out in section 2 of Part A of Schedule 8;

(d) it shall be sent for publication between thirty-five days

and twelve months prior to the date on which the

invitation to confirm interest is sent.

(3) Such notices shall not be published on a buyer profile;

however, the additional publication at national level pursuant to the

provisions of regulation 67, if any, may be made on a buyer profile.

(4) The period covered by the periodic indicative notice shall

be a maximum of twelve months from the date the notice is

transmitted for publication; however, in the case of contracts for

social and other specific services, the periodic indicative notice

referred to in regulation 135(1)(a)(ii) may cover a period which is

longer than twelve months.

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

competition in respect of all procedures.

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

relevant part of Schedule 11 and shall be published in accordance

with regulation 66.

(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, contracting entities shall send a contract

award notice on the results of the procurement procedure.

(2) Such notice shall contain the information set out in

Schedule 12 and shall be published in accordance with regulation

(3) In the case of framework agreements concluded in

accordance with regulations 143 to 146, contracting entities shall

not be bound to send a notice of the results of the procurement

procedure for each contract based on that agreement

Provided that contracting entities 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

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

of each quarter.

(4) Contracting entities shall send a contract award notice

within thirty days after the award of each contract based on a

dynamic purchasing system. 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.

(5) The information provided in accordance with Schedule 19

and intended for publication shall be published in accordance with

Schedule 10. 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 or would prejudice the

legitimate commercial interests of a particular economic operator,

public or private, or might prejudice fair competition between

economic operators.

(6) In the case of contracts for research-and-development

services ("R & D services"), the information concerning the nature

and quantity of the services may be limited to

(a) the indication "R & D services" where the contract has

been awarded by a negotiated procedure without a call

for competition in accordance with regulations 125(b),

126(b) and 127(b);

(b) information at least as detailed as was indicated in the

notice that was used as a means of calling for

competition.

(7) Information provided in accordance with Schedule 12 and

marked as not being intended for publication shall be published

only in simplified form and in accordance with Schedule 10 for

statistical purposes.

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

has been made in the form of a periodic indicative notice and the

contracting entity has decided that it will not award further

contracts during the period covered by the periodic indicative

notice, the contract award notice shall contain a specific indication

to that effect.

66. (1) Notices referred to in regulations 63 to 65 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 Schedules 8 Part A and Part

B, 11 and 12 in the format of standard forms, including standard

forms for corrigenda.

(2) Notices referred to in regulations 63 to 65 shall be drawn

up, transmitted by electronic means to the Publications Office of

the European Union and published in accordance with Schedule 10.

(3) Contracting entities 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.

(5) Notices referred to in regulations 63 to 65 shall be

published in full in the official language(s) of the institutions of the

Union chosen by the contracting entity. That language version or

those language versions shall constitute the sole authentic text(s).

(6) Contracting entities may publish notices for works, supply

o r s e r vi c e c on t ra c t s t h a t a re n o t su bj e c t t o t he p u bl i c a t io n

requirements laid down in these regulations provided that those

notices are sent to the Publications Office of the European Union

by electronic means in accordance with the format and procedures

for transmission indicated in Schedule 10.

(1) Unless otherwise authorised by the Director, tenders

issued with an estimated value which falls under regulation

30(1)(b) shall be published through government’s e-procurement

platform

Provided that if the contracting authority 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 63 to 65 and the

information contained therein shall not be published at national

level before the publication pursuant to regulation 66

Provided that, publication may in any event take place at

the national level where contracting entities have not been notified

of the publication within forty-eight hours after confirmation of the

receipt of the notice in accordance with regulation 66.

(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) Periodic indicative 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) Contracting entities that intend to organise a design

contest with an estimated value which meets or exceeds the

threshold established under Schedule 5 shall call for competition by

means of a contest notice.

(2) Where contracting entities intend to award a subsequent

service contract pursuant to regulation 126(g), this shall be

indicated in the design contest notice.

(3) Contracting entities that have held a design contest shall

make the results known by means of a notice.

(4) The call for competition shall include the information set

out in Schedule 18 and the notice of the results of a design contest

shall include the information set out in Schedule 19 in the format of

standard forms.

(5) The notice of the results of a design contest shall be

forwarded to the Publication Office of the European union within

thirty days of the closure of the design contest.

(6) 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 economic operator, whether public or

private, or might prejudice fair competition between economic

operators, such information may be withheld from publication.

(7) The provisions of regulation 66 shall also apply to notices

relating to design contests.

(1) Before

launching

a

procurement

procedure,

contracting entities may conduct market consultations with a view

to preparing the procurement and informing economic operators of

their procurement plans and requirements.

(2) Subject to the provisions of these regulations, contracting

entities may, for example, 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 exchanged 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), contracting entities shall not be obliged to require 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 entities;

(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) Contracting entities are 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 because of a breach of security of the

electronic means of 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 (10) and

(11).

(6) It shall be the responsibility of the contracting entities

requiring, in acco rdance wi th sub -regulation (3), m eans of

communication other than electronic means in the submission

process to indicate in the individual report referred to in regulation

172, as the case may be, the reasons for this requirement. Where

applicable, contracting entities 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,

contracting entities shall ensure that the integrity of data and the

confidentiality of tenders and requests to participate are preserved.

T h e y sh al l e x a m i n e t h e c o n t e n t o f t e n d e r s an d r e q u es t s t o

participate only after the time limit set for submitting them has

expired.

(9) For public works contracts and design contests the

contracting entities require the use of specific electronic tools, such

as of building information electronic modelling tools or similar. In

such cases the contracting entities 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) Contracting entities may, where necessary, require the use

of tools and devices which are not generally available, provided

that the contracting entities offer alternative means of access.

(11) Contracting entities 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 10 or from the date when the invitation to

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

PUBLIC PROCUREMENT OF ENTITIES IN THE WATER,

ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

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 7, 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) contracting entities 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 a contracting entity acting within an overall

framework conclude 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 entities 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 contracting entities 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 contracting entity 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 contracting authorities 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

required for th e purpose of processing t he sig nature in t he

document concerned. Such documents shall contain in the

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.

(1) On request from economic operators interested in

obtaining a contract, contracting entities shall make available the

technical specifications regularly referred to in their supply, works or

service contracts or the technical specifications which they intend to

apply to contracts for which the call for competition is a periodic

indicative notice. Those specifications shall be made available by

electronic means through unrestricted and full direct access free of

charge.

(2) The technical specifications shall be transmitted by other

means, other than electronic means, where unrestricted and full

direct access free of charge by electronic means to certain

procurement documents cannot be offered for one of the reasons set

out in regulation 70(1) to (6) or where unrestricted and full direct

access free of charge by electronic means to certain procurement

documents cannot be offered because contracting entities intend to

apply regulation 62(3).

(3) Where the technical specifications are based on documents

available by electronic means through unrestricted and full direct

access free of charge to interested economic operators, the

inclusion of a reference to those documents shall be sufficient.

(1) Contracting entities shall by electronic means offer

unrestricted and full direct access free of charge to the procurement

documents, with an estimated value which falls under Schedule 5,

from the date of publication of a notice in accordance with

regulation 66 or the date on which an invitation to confirm interest

was sent.

(2) Where unrestricted and full direct access free of charge by

electronic means to certain procurement documents, with an

estimated value which falls under Schedule 5, cannot be offered for

one of the reasons set out in regulation 70(3), contracting entities

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

the procurement documents concerned will be transmitted by other

means than electronic means.

(3) In the cases mentioned in sub-regulation (2) the time limit

for the submission of tenders shall be prolonged by five days,

except in cases of duly substantiated urgency referred to in

regulation 91(3).

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

under Schedule 5 where unrestricted and full access free of charge

by electronic means to certain procurement documents cannot be

offered because contracting entities intend to apply regulation

62(3), they shall indicate in the notice or the invitation to confirm

interest or, where the means of calling for competition is a notice

on the existence of a qualification system, in the procurement

documents, which measures aimed at protecting the confidential

nature of the information they require and how access can be

obtained to the documents concerned.

(5) In the cases mentioned in sub-regulation (4), 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

regulation 91(3).

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

the existence of a qualification system, such access shall be offered

as soon as possible and at the latest when the invitation to tender or

to negotiate is sent. The text of the notice or of those invitations

shall specify the internet address at which the procurement

documents are accessible.

(1) In restricted procedures, competitive dialogue

procedures, innovation partnerships and negotiated procedures with

prior call for competition, contracting entities shall simultaneously

and in writing invite the selected candidates to submit their tenders

or, to take part in the dialogue or to negotiate.

(2) The invitations referred to in sub-regulation (1) shall

i n c l ud e a r e f e r e n c e t o t h e e l e c t r o n i c a d dr e s s o n wh i c h t he

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 72(2) and (3) or 72(4) and (5) 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 13.

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

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

shall simultaneously and in writing invite the economic operators

which have expressed their interest to confirm their continuing

interest.

(1) Where the use of electronic means of communication

is required, contracting entities 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 entity.

(4) Electronic catalogues shall comply with the requirements

for electronic communication tools as well as with any additional

requirements set by the contracting entity in accordance with

regulation 70.

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

catalogues is accepted or required, contracting entities shall

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

confirm interest, or, where the means of calling for

competition is a notice on the existence of a qualification

system, in the invitation to tender or to negotiate;

(b) indicate in the procurement documents all the

necessary information pursuant to regulation 70(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

tenders in the form of electronic catalogues, contracting entities

may provide that the reopening of competition for specific

contracts takes place on the basis of updated catalogues. In such a

case, contracting entities 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 contracting entities 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) Contracting entities shall allow for an adequate period

between the notification and the actual collection of information.

(9) Before awarding the contract, contracting entities 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) Contracting entities may award contracts based on a

dynamic purchasing system by requiring that offers for a specific

c on t r a c t a r e t o b e p r e s e n t e d in t h e f o r m a t of a n e l e c t r o n i c

catalogue.

(11) Contracting entities may also award contracts based on a

dynamic purchasing system in accordance with the provisions of

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

entity.

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

be completed subsequently by the candidates, when they are

informed of the contracting entity’s intention to constitute tenders

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

Time Limits and Technical Specifications

(1) When fixing the time limits for requests to participate

and the receipt of tenders, contracting entities shall take particular

account of the complexity of the contract and the time required for

drawing up tenders without prejudice to the minimum time limits

set out in regulations 90 to 123.

(2) Where tenders can be made only after a visit to the site or

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

procurement documents, the time limits for the receipt of tenders,

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

regulations 90 to 123, shall be fixed so that all economic operators

concerned may be aware of all the information needed to produce

tenders.

(3) Contracting entities 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 open procedure as referred to in

regulation 91(3), 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, contracting entities shall not be

required to extend the time limits.

(6)

Late tenders shall be disqualified from the process.

(1) The technical specifications as defined in regulation 2

shall be set out in the procurement documents. The technical

specification shall lay down the characteristics required of a works,

service or supply.

(2) Those 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 provided that they are linked to the subject-matter of the

contract and 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

persons, whether general public or staff of the contracting entity,

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 entities 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 (7) is not possible.

Such reference shall be accompanied by the words "or equivalent".

(9) Where a contracting entity 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 78 that the solutions proposed satisfy in an

equivalent manner the requirements defined by the technical

specifications.

(10) Where a contracting entity 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 78, that the work,

supply or service in compliance with the standard meets the

performance or functional requirements of the contracting entity.

(1)

Where contracting entities 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 entities 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 entities 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

po ssibi li ty o f o bt ain in g th e sp ecifi c l abel i nd ic ated b y th e

contracting entity or an equivalent label within the relevant time

limits for reasons that are not attributable to that economic

operator, the contracting entity 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 t he requ irements o f the specific label or the specific

requirements indicated by the contracting entity.

(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 entities

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) Contracting entities 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 contracting entities 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 entities.

(3) Contracting entities shall accept other appropriate means of

proof 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 certificates 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

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 service and works contracts as

well as supply contracts covering in addition services or siting 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 entities to have a specific legal

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

(2) Where necessary, contracting entities 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 regulations 164 to

169 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) Contracting entities may require groups of economic

operators to assume a specific legal form once they have been

awarded the contract, to the extent that such 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 entity,

whether in the context of regulation 69 or not, or has otherwise

been involved in the preparation of the procurement procedure, the

contracting entity 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 the provisions of Part III or regulation 172, as the case

may be.

(1)In the procurement documents, the contracting entity

may ask the tenderer to indicate in its tender any share of the

contract it may intend to subcontract 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 subcontractors.

(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 entity, after the award of the contract and at the latest

when the performance of the contract commences, the contracting

entity shall require the main contractor to indicate to the

contracting entity the name, contact details and legal

representatives of its subcontractors, involved in such works or

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

entity shall require the main contractor to notify the contracting

entity of any changes to this information during the course of the

contract as well as of the required information for any new

subcontractors which it subsequently involves in such works or

services

Provided that this sub regulation does not apply to

suppliers.

(4) Where necessary the required information shall be

accompanied by the subcontractors’ self-declarations as referred to

in regulation 71(4).

(5) Contracting entities 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 34(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 Chosen Bid

(1) For the purpose of selecting participants in their

procurement procedures, the following rules shall all apply

(a) contracting entities having provided rules and criteria

for the exclusion of tenderers or candidates in

accordance with regulation 164 or regulation 165(1)

shall exclude economic operators identified in

accordance with such rules and fulfilling such criteria;

(b) they shall select tenderers and candidates in

accordance with the objective rules and criteria laid

down pursuant to regulations 164 and 165;

(c) in restricted procedures, in negotiated procedures with

a call for competition, in competitive dialogues and in

innovation partnerships, with an estimated value

which falls under regulation 30(b) they shall where

appropriate reduce in accordance with regulation

165(2) the number of candidates selected pursuant to

paragraph (a) and (b).

(2) When selecting participants for a restricted or negotiated

procedure, a competitive dialogue or an innovation partnership, in

reaching their decision as to qualification or when the criteria and

rules are being updated, contracting entities shall not

(a) impose administrative, technical or financial

conditions on certain economic operators which would

not be imposed on others;

(b) require tests or evidence which would duplicate

objective evidence already available.

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

on the existence of a qualification system and for the purpose of

selecting participants in procurement procedures for the specific

contracts which are the subject of the call for competition,

contracting entities shall

(a) qualify economic operators in accordance with the

provisions of regulation 169;

(b) apply to such qualified economic operators those

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

restricted or negotiated procedures, to competitive

dialogues or to innovation partnerships.

(1) Without prejudice to Part VI and regulation 168(6), a

contracting authority 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 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 of

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

procurement document.

(4) Contracting entities shall verify that the tenders submitted

by the selected tenderers comply with the rules and requirements

applicable to tenders and award the contract on the basis of the

criteria laid down in regulations 170 and 174 taking into account

the provisions of regulation 175.

Part II

Boards, Committees and Tribunals

Regulations 64 to 99 of the Public Procurement

Regulations, 2016, shall mutatis mutandis apply to these

regulations.

Part III

Rules applicable to Departmental Tenders

(1) Regulations 100 and 102 to 113 of the Public

Procurement Regulations, 2016, shall mutatis mutandis apply to

these regulations.

(2) For the purposes of these regulations, the negotiated

procedure with prior publication shall also not be available for

departmental tenders.

Where the estimated value meets or exceeds ten thousand

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

regulation 30(1)(a), the equipment, stores, works or services may

be procured after a departmental call for tenders.

Part IV

Types of Procurement Procedures

(1) Contracts may be awarded using the open procedure,

the restricted procedure, the negotiated procedure with prior call

for competition, competitive dialogue, the negotiated procedure

without prior call for competition and design contests.

PUBLIC PROCUREMENT OF ENTITIES IN THE WATER,

ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

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

following means

(a) a periodic indicative notice pursuant to the provisions

of regulation 63 where the contract is awarded by

restricted or negotiated procedure;

(b) a notice on the existence of a qualification system

pursuant to the provisions of regulation 169 where the

contract is awarded by restricted or negotiated

procedure or by a competitive dialogue or an

innovation partnership;

(c) by means of a contract notice pursuant to the

provisions of regulation 64.

(3) In the case referred to in sub-regulation (2)(a), economic

operators, having expressed their interest following the publication

of the periodic indicative notice, shall subsequently be invited to

confirm their interest in writing by means of an invitation to

confirm interest in conformity with the provisions of regulation 73.

In open procedures, any interested economic operator may

submit a tender in response to a call for competition.

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

falls under the threshold established under regulation

30(b)shall have a minimum time limit for the receipt of

tenders which shall be thirty-five days from the date of

publication.

(b) When the estimated value of a call for tenders meet sor

exceeds the value in Schedule 5, this call shall be made

by means of a contract notice and the time limit

mentioned paragraph (a) shall start to run 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

contracting entity.

(2) Where contracting entities have published a periodic

indicative notice the minimum time limit for the receipt of tenders,

as laid down in the sub-regulation (1)(a), may be shortened to

fifteen days, provided that all of the following conditions are

fulfilled

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

the information required by section I of Part A of

Schedule 8, all the information required by section II

of Part A of Schedule 8, insofar as the latter

information was available at the time the periodic

indicative notice was published;

(b) the periodic indicative notice was sent for publication

between thirty-five days and twelve months before the

date on which the contract notice was sent;

(c) the tender shall be accompanied by the information for

qualitative selection that is requested by the

contracting entity.

(3) Where a state of urgency duly substantiated renders

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

contracting entity, upon approval of the Director, may fix a time

limit which shall be not less than fifteen days from the date on

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

European Union.

(4) The contracting entity may reduce by five days the time

limit for receipt of tenders set out in sub-regulation (1)(a) where it

accepts that tenders may be submitted by electronic means in

accordance with regulation 70(9) to (14).

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

less than the threshold established under regulation 30(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 this time limit can be reduced to fifteen days

in cases of extreme urgency with the prior approval of the head of

the contracting entity.

(1) (a) Sejħa għal kompetizzjoni b’valur stmat li jaqa’ taħt

il-limitu stabbilit taħt ir-regolament 30(b) għandu

jkollha limitu ta’ żmien minimu għar-riċevuta ta’

offerti li għandu jkun ta’ ħamsa u tletin jum mid-data

tal-pubblikazzjoni.

(b) Meta l-valur stmat ta’ sejħa għal offerta jilħaqjew

jaqbeż il-valur imsemmi fl-Iskeda 5, din is-sejħa

għandha ssir permezz ta’ avviż ta’ kuntratt u l-limitu

ta’ żmien imsemmi fil-paragrafu (a) għandu jibda’

jiddekorri mid-data ta’ meta l-avviż ta’ kuntratt ikun

intbagħat lill-Uffiċċju tal-Pubblikazzjonijiet tal-

Unjoni Ewropea.

(ċ) L-offerta

għandha

tkun

akkumpanjata

mill-

informazzjoni għall-għażla kwalitattiva li tkun mitluba

mill-entità kontraenti.

(2) Meta l-entitajiet kontraenti jkunu ppubblikaw avviż

perjodiku indikattiv, il-limitu ta’ żmien minimu għar-riċevuta ta’

offerti, kif stabbilit fis-subregolament (1)(a), jista’ jitqassar għal

ħmistax-il ġurnata, sakemm il-kundizzjonijiet kollha li ġejjin jiġu

sodisfatti

(a) l-avviż perjodiku indikattiv inkluda, minbarra l-

informazzjoni meħtiega mis-sezzjoni I tat-Taqsima A tal-

Iskeda 8, l-informazzjoni kollha meħtieġa mis-sezzjoni II

tat-Taqsima A tal-Iskeda 8, sa fejn din l-informazzjoni

msemmija l-aħħar kienet disponibbli fiż-żmien meta ġie

ppubblikat l-avviż perjodiku indikattiv;

(b) l-avviż

perjodiku

indikattiv

intbagħat

għall-

pubblikazzjoni bejn ħamsa u tletin jum u tnax-il xahar

qabel id-data li fiha ntbagħat l-avviż ta’ kuntratt.

(ċ) l-offerta għandha tkun akkumpanjata mill- informazzjoni

għall-għażla kwalitattiva li tkun mitluba mill-entità

kontraenti.

(3) Fejn stat ta’ urġenza ssostanzjat debitament mill-entità

kontraenti jrendi bħala imprattikabbli l-limitu ta’ żmien stabbilit fis-

subregolament (1)(a), din tista’, bl-approvazzjoni tad-Direttur,

tistabbilixxi limitu ta’ żmien li ma għandux ikun inqas minn ħmistax-il

jum mid-data li fiha ntbagħat l-avviż ta’ kuntratt lill-Uffiċċju tal-

Pubblikazzjonijiet tal-Unjoni Ewropea.

(4) L-entità kontraenti tista’ tnaqqas b’ħamest ijiem il-limitu ta’

żmien għar-riċevuta ta’ offerti stabbiliti fis-subregolament (1)(a) meta

hi taċċetta li l-offerti jistgħu jiġu ppreżentati b’mezzi elettroniċi skont ir-

regolament 70(9) sa (14).

(5) Fil-każ ta’ kuntratt b’valur stmat li jkun anqas mil-limitu

stabbilit taħt ir-regolament 30(1)(a), il-limitu minimu ta’ żmien

għar-riċevuta ta’ offerti għandu jkun ta’ għoxrin ġurnata mid-data li

fiha ġiet ippubblikata l-offerta

Iżda dan il-limitu ta’ żmien jista’ jitnaqqas għal ħmistax-il

ġurnata f’każijiet ta’ urġenza estrema bl-approvazzjoni minn qabel

tal-kap tal-entità kontraenti.

In open procedures, contracting entities may decide to

examine tenders before verifying the suitability of tenderers,

provided that the relevant provisions of regulations 84, 85, 164 to

171 and 174 are observed, including the rule that the contract shall

not be awarded to a tenderer who should have been excluded

pursuant to regulation 164 or who does not meet the selection

criteria set out by the contracting entity in accordance with

regulations 165(1) and 164.

Restricted Procedure

In restricted procedures, any economic operator may submit

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

providing the information for qualitative selection that is requested

by the contracting entity.

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

participate shall, as a general rule, be fixed at no less than thirty

days from the invitation to confirm interest was sent and shall in

any event not be less than fifteen days as the case may be.

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

or exceeds the values established under Schedule 5, the time limit

established in sub-regulation (1) shall start to run 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 entity following its assessment of the information

provided may submit a tender. Contracting entities may limit the

number of suitable candidates to be invited to participate in the

procedure in accordance with regulation 165(2).

The minimum time limit for the receipt of tenders shall at

least be ten days from the date on which the invitation to tender

was sent.

(1) Where the estimated value of a call for competition

meets or exceeds the threshold established under regulation

30(1)(b), a contracting authority may after obtaining the prior

approval of the Director issue a negotiated procedure with a prior

call for competition.

(2) In granting his approval the Director may impose any

condition he may deem fit to impose.

In negotiated procedures with prior call for competition,

any economic operator may submit a request to participate in

response to a call for competition by providing the information for

qualitative selection that is requested by the contracting entity.

The minimum time limit for the receipt of requests to

participate shall, as a general rule, be fixed at no less than thirty

days from the date on which the contract notice was sent in case of

tenders with an estimated value which meet or exceed the values in

Schedule 5, or when the call for competition is published or, where a

periodic indicative notice is used as a means of calling for

competition, the invitation to confirm interest was sent and shall in

any event not be less than fifteen days.

Only those economic operators invited by the contracting

entity following its assessment of the information provided may

participate in the negotiations. Contracting entities may limit the

number of suitable candidates to be invited to participate in the

procedure in accordance with regulation 165(2).

The time limit for the call for tenders shall at least ten days

from the date on which the invitation to tender was sent.

(1) Upon being requested by the contracting entity the

Director may, subject to any conditions he may deem appropriate to

impose, approve in writing the use of the innovation partnership

procedure. The Director may impose any condition he may deem

necessary for the correct execution of this procedure.

(2) The request mentioned must be supported by documents

demonstrating that the need of the contracting entity 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 for tenders with an estimated value which meets or

exceeds the value under Schedule 5 or a call for competition, as the

case may be, by providing the information for qualitative selection

that is requested by the contracting entity.

In the procurement documents, the contracting entity 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 entity may decide to set up the innovation

partnership with one partner or with several partners conducting

separate research and development activities.

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

participate shall be thirty days from the publication of the call for

competition. Only those economic operators invited by the

contracting entity following the assessment of the information

provided may participate in the procedure. Contracting entities may

limit the number of suitable candidates to be invited to participate

in the procedure in accordance with regulation 165(2). The

contracts shall be awarded on the sole basis of the award criterion

of the best price-quality ratio in accordance with regulation 170(2)

and (3).

(2) Where the estimated value of the innovation partnership

meets or exceeds the values established under Schedule 5 the time

limit established in sub-regulation (1) shall start to run from the

date when the contract notice is sent to the Publication Office of the

European Union.

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 entities 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 partners and provide for payment of the

remuneration in appropriate instalments.

Based on those targets, the contracting entity 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 entity has indicated in the

procurement documents those possibilities and the conditions for

their use.

(1) Unless otherwise provided for in this regulation,

contracting entities 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 entities 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 entities shall provide sufficient time for tenderers to

modify and re-submit amended tenders, as appropriate.

(4) In accordance with regulation 62, contracting entities 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

entity shall indicate whether it will use that option.

(1) In selecting candidates, contracting entities 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

entity following its assessment of the requested information may

submit research and innovation projects aimed at meeting the needs

identified by the contracting entity that cannot be met by existing

solutions.

In the procurement documents, the contracting entity shall

define the arrangements applicable to intellectual property rights.

In the case of an innovation partnership with several partners, the

contracting entity shall not, in accordance with regulation 62,

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 entity 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.

Upon being requested by the contracting authority, the

Director may, subject to any conditions he may deem appropriate to

impose, approve in writing the use of the competitive dialogue.

Any economic operator may submit a request to participate

in response to either a contract notice in respect to tenders with an

estimated value which meets or exceeds the threshold in Schedule 5

or a call for competition, as the case may be, by providing the

information for qualitative selection that is requested by the

contracting entity.

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 when the call for competition is published or,

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

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

event not be less than fifteen days as the case may be.

Only those economic operators invited by the contracting

entity following the assessment of the information provided may

participate in the dialogue. Contracting entities may limit the

number of suitable candidates to be invited to participate in the

procedure in accordance with regulation 165(2). The contract shall

be awarded on the sole basis of the award criterion of the best

Contracting entities 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 entities shall open, with the participants

selected in accordance with the relevant provisions of regulations

84, 85, 92 and 164 to 169, 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 entities 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 62, contracting

entities 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 entity shall

indicate whether it will use that option.

(5) The contracting entity 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 entities 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

the request of the contracting entity. However, such 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 entities 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 entity, negotiations with

the tenderer identified as having submitted the tender presenting

the best price-quality ratio in accordance with regulation 170(2)

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 entities may specify prizes or payments to the

participants in the dialogue.

Negotiated procedure without prior publication

(1) Upon being requested in writing by the contracting

entity, 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.

(2) The request made by the contracting authority must duly

substantiate the need for the negotiated procedure.

(3) The Director shall not allow the use of this procedure in any

other cases than those referred to under this Part.

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 a procedure with a

prior call for competition, provided that the initial

conditions of the contract are not substantially altered;

(b) where a contract is purely for the purpose of research,

experiment, study or development, and not for the

purpose of securing a profit or of recovering research

and development costs, and insofar as the award of

such contract does not prejudice the competitive award

of subsequent contracts which do seek, in particular,

those ends;

(c) 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;

(d) in so far as is strictly necessary where, for reasons of

extreme urgency brought about by events

unforeseeable by the contracting entity, the time limits

laid down for open procedures, restricted procedures

and negotiated procedures with prior call for

competition cannot be complied with. The

circumstances invoked to justify extreme urgency shall

not in any event be attributable to the contracting

entity;

(e) for new works consisting in the repetition of similar

work assigned to the contractor to which the same

contracting entities awarded an earlier contract,

provided that such works or services conform to a

basic project for which a first contract was awarded

according to a procedure in a manner provided for

under these regulations

Provided that the basic project shall indicate the extent of

possible additional works or services and the conditions under

which they will be awarded. 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

PUBLIC PROCUREMENT OF ENTITIES IN THE WATER,

ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

taken into consideration by the contracting entities when they apply

regulations 30, 42 and Schedule 5.

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 a procedure with a

prior call for competition, provided that the initial

conditions of the contract are not substantially altered;

(b) where a contract is purely for the purpose of research,

experiment, study or development, and not for the

purpose of securing a profit or of recovering research

and development costs, and insofar as the award of

such contract does not prejudice the competitive award

of subsequent contracts which do seek, in particular,

those ends;

(c) 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;

(d) in so far as is strictly necessary where, for reasons of

extreme urgency brought about by events

unforeseeable by the contracting entity, the time limits

laid down for open procedures, restricted procedures

and negotiated procedures with prior call for

competition cannot be complied with. The

circumstances invoked to justify extreme urgency shall

not in any event be attributable to the contracting

entity;

(e) for new services consisting in the repetition of services

assigned to the contractor to which the same

contracting entities awarded an earlier contract,

provided that such works or services conform to a

basic project for which a first contract was awarded

according to a procedure in a manner provided for

under these regulations

Provided that the basic project shall indicate the extent

of possible additional works or services and the

conditions under which they will be awarded. 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 entities

when they apply regulations 30, 42 and Schedule 5;

(f)

for purchases of services under particularly

advantageous conditions 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;

(g) where the service 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 to one of the

winners of that contest; in the latter case, all the

winners shall be invited to participate in the

negotiations.

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 a procedure with a

prior call for competition, provided that the initial

conditions of the contract are not substantially altered;

(b) where a contract is purely for the purpose of research,

experiment, study or development, and not for the

purpose of securing a profit or of recovering research

and development costs, and insofar as the award of

such contract does not prejudice the competitive award

of subsequent contracts which do seek, in particular,

those ends;

(c) 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;

(d) in so far as is strictly necessary where, for reasons of

extreme urgency brought about by events

unforeseeable by the contracting entity, the time limits

laid down for open procedures, restricted procedures

and negotiated procedures with prior call for

competition cannot be complied with. The

circumstances invoked to justify extreme urgency shall

not in any event be attributable to the contracting

entity;

(e) in the case of supply contracts 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 entity to acquire supplies having different

technical characteristics which would result in

incompatibility

or

disproportionate

technical

difficulties in operation and maintenance;

(f)

for supplies quoted and purchased on a commodity

market;

(g) for bargain purchases, where it is possible to procure

supplies by taking advantage of a particularly

advantageous opportunity available for a very short

time at a price considerably lower than normal market

prices;

(h) for purchases of supplies under particularly

advantageous conditions 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.

For the purposes of this Part 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 entity’s needs and requirements as specified in the

procurement documents. A request for participation shall be

con sid ered no t to be suitabl e where t he econom ic operat or

concerned is to be or may be excluded pursuant to regulations

165(1) or 164, or does not meet the selection criteria laid down by

the contracting entity pursuant to regulations 164, 166 or 165.

Design Contests

This Part applies to design contests organised as part of a

procurement procedure for a service contract,

(1) When organising design contests, contracting entities

shall apply procedures which are adapted to regulations 2 to 32, 34,

35, 43 to 55, 61, 62, 68, 70, 80, 81 and 129 to 133 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 entities 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) Contracting entities 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 thirty per

cent of the employees of those workshops, economic operators or

programmes are disabled or disadvantaged workers.

(2) The call for competition shall make reference to this

regulation.

Contracts for social and other specific services listed in

Schedule 16 shall be awarded in accordance with this Part.

(1) Contracting entities intending to award a public

contract for the services referred to in regulation 134 shall make

known their intention by the following means

(a) for public contracts with an estimated value which

meets or exceeds the threshold established under

paragraph (c) of Schedule 5

(i) by means of a contract notice; or

(ii) by means of a periodic indicative notice, which

shall be published continuously. The periodic

indicative 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; or

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

qualification system, which shall be published

continuously; or

(b) for public contracts with an estimated value which is

less than the threshold mentioned under paragraph (c)

of Schedule 5 by publishing it in the government e-

procurement system

Provided that this paragraph shall not apply where a

negotiated procedure without prior publication could

have been used in conformity with regulation 126 for

the award of a public service contract.

In respect to public contracts with an estimated value

which meets or exceed the threshold established under paragraph

(c) of Schedule 5, contracting entities that have awarded a contract

for the services referred to in regulation 134 shall make known the

results by means of contract award notice. 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.

(1) The notices referred to in under this Part shall contain

the information referred to in Schedule 17, respectively in parts A,

B, C or D, in accordance with the standard model notices. The

Commission shall establish the standard forms by means of

implementing acts.

(2) The notices referred to under this Part shall be published in

accordance with regulation 66.

(1) Contracting entities shall determine in the respective

procurement documents the procedures that they are going to be

applied in connection with the award of a call for tenders subject to

what is stated in regulations covered by this Part.

(2) Contracting entities shall ensure that the procedures

mentioned in sub-regulation (1) adequately cater for the principles

of transparency and equal treatment of economic operators.

(1) Contracting entities may take into account the need to

ensure quality, continuity, accessibility, affordability, availability

and comprehensiveness of the services, the specific needs of

d i ff e r e n t c a t e g o r i e s o f us e r s , i n c l u d i n g d i s a d v a n t a ge d an d

vulnerable groups, the involvement and empowerment of users and

innovation.

(2) Contracting entities shall ensure that the procedures

identified in sub-regulation (1) shall be reasonable and

proportionate, in particular, the time limits allowed for the

submission of the offer shall be sufficient to allow bidders to

submit an offer.

(3) In establishing the procedures mentioned under this Part

contracting entities may, subject to what is stated in the regulations

established under this Part, also decide to apply the regulations

established for other procurement procedures.

(4) Contracting entities 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 entities 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 134, 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, 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.

The maximum duration of the contract shall not be longer

than three years.

The call for competition issued under this title shall make

reference to the regulations under this Part.

Part V

Aggregation of Procurement

Contracting entities may conclude framework agreements,

provided that they apply the procedures provided for in these

regulations.

The term of a framework agreement shall not exceed eight

years, save in exceptional cases duly justified, in particular by the

subject of the framework agreement.

(1) Contracts based on a framework agreement shall be

awarded on the basis of objective rules and criteria, which may

include reopening the competition among those economic operators

party to the framework agreement as concluded. These rules and

criteria shall be set out in the procurement documents for the

framework agreement.

(2) The objective rules and criteria, shall ensure equal

treatm ent of the econom ic operators who are parties to the

agreement. Where a reopening competition is included, contracting

entities shall set a time limit which is sufficiently long to allow

tenders for each specific contract to be submitted and contracting

entities shall award each contract to the tenderer that has submitted

the best tender on the basis of the award criteria set out in the

specifications of the framework agreement.

Contracting entities shall not use framework agreements

improperly or in such a way as to prevent, restrict or distort

competition.

(1) For commonly used purchases the characteristics of

which, as generally available on the market, meet the requirements

of the contracting entities, contracting entities may use a dynamic

purchasing system.

(2) 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.

(3) 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, contracting entities 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 165(2). Where contracting entities have divided the

system into categories of products, works or services in accordance

with sub-regulation (1), they shall specify the applicable selection

criteria for each category.

(3)

Notwithstanding the provisions of regulations 93 to 96, the

following time limits shall apply

(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 when the call for competition is

published or, where a periodic indicative notice is used as

a means of calling for competition, the invitation to

confirm interest is sent and shall in any event not be less

than fifteen days as the case may be. 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. The provisions of regulation 96 shall

apply.

All communications in the context of a dynamic

purchasing system shall only be made by electronic means in

accordance with regulation 70(1) to (6), (8) and (10) to (14).

(1) For the purposes of awarding contracts under a

dynamic purchasing system, contracting entities 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 72.

(2) Contracting entities 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 148.

(3) Contracting entities 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, contracting entities may extend the evaluation period

provided that no invitation to tender is issued during the extended

evaluation period. Contracting entities shall indicate in the

procurement documents the length of the extended period that they

intend to apply.

(6) Contracting entities 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) Contracting entities shall invite all admitted participants to

submit a tender for each specific procurement under the dynamic

purchasing system, in accordance with regulation 73. Where the

dynamic purchasing system has been divided into categories of

works, products or services, contracting entities 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 or, where a prior

information notice is used as a means of calling for competition, in

the invitation to confirm interest. Those criteria may, where

appropriate, be formulated more precisely in the invitation to

tender.

(1) Contracting entities who, pursuant to regulation 164,

apply exclusion grounds and selection criteria provided for under

the Public Procurement Regulations, 2016, 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 regulation 225 of those regulations,

within five working days from the date on which that request is

transmitted.

(2) The provisions of regulations 228 and 229 of the Public

Procurement Regulations shall apply throughout the entire period

of validity of the dynamic purchasing system.

Contracting entities 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 65.

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.

Contracting entities may use electronic auctions, in which

new prices, revised downwards, and, or new values concerning

certain elements of tenders are presented.

(1) Contracting entities shall structure the electronic

auction 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 30(1)(b), the contracting entities may decide that the

award of a public contract shall be preceded by an electronic

auction when the content of the 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 regulations 145 and 146

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.

Contracting entities which decide to hold an electronic

auction shall state that fact in the contract notice, in the invitation to

confirm interest or, where a notice on the existence of a qualification

system is used as a means of calling for competition, in the invitation

to tender. The procurement documents shall include at least the

information set out in Schedule 8.

Before proceeding with an electronic auction, contracting

entities 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 regulations 164(1) or 165(1) 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 entity 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

e x c e e d s t h e c o n t r a c t i n g e n t i t y ’s b u d g e t a s d e t e r m i n e d a n d

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 entity’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 regulations 164(1) or 165(1) or does not meet the selection

criteria set out by the contracting entity.

(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 170(7), (8), (9).

(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 form ula shall

i n c o rp o ra te t h e w e ig h ti ng of al l t he c r it e r i a es t a b li s h e d t o

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

contracting entities 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 i ndicated, co mm u nica te o th e r in for m a ti on

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) Contracting entities 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 contracting entities 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 contracting entities shall

award the contract in accordance with regulation 170 on the basis

of the results of the electronic auction.

Part VI

Exclusion and Black Listing of Economic Operators

Part VI of the Public Procurement Regulations shall

mutatis mutandis apply to these regulations.

Part VII

Choice of participants and award of contracts

(1) Contracting entities may establish objective rules and

criteria for the exclusion and selection of tenderers or candidates;

those rules and criteria shall be available to interested economic

operators.

(2) Where contracting entities need to ensure an appropriate

balance between the particular characteristics of the procurement

procedure and the resources required to conduct it, they may, in

restricted or negotiated procedures, in competitive dialogues or in

innovation partnerships, establish objective rules and criteria that

reflect this need and enable the contracting entity to reduce the

number of candidates that will be invited to tender or to negotiate.

The number of candidates selected shall, however, take account of

the need to ensure adequate competition.

Regulations 217 to 233 of the Public Procurement

Regulations shall mutatis mutandis apply to these regulations.

(1) Contracting entities 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 entities 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 entity

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.

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

and selection of economic operators requesting qualification in a

qualification system include requirements relating to the economic and

financial capacity of the economic operator, or to its technical and

professional abilities, the economic operator may where necessary rely

on the capacity of other entities, whatever the legal nature of the link

between itself and those entities. With regard to criteria relating to the

educational and professional qualifications of the service provider or

contractor or those of the undertaking’s managerial staff or to the

relevant professional experience, economic operators may however

only rely on the capacities of other entities where the latter will

perform the works or services for which these capacities are required.

Where an economic operator wants to rely on the capacities of other

entities, it shall prove to the contracting entity that those resources will

be available to it throughout the period of the validity of the

qualification system, for example by producing a commitment by

those entities to that effect.

(2) Contracting entities shall verify whether the other entities

on whose capacity the economic operator intends to rely, fulfil the

relevant selection criteria or whether there are grounds for

exclusion or black listing, to which the contracting entities have

referred The contracting entity shall require that the economic

operator replaces an entity which does not meet a relevant selection

criterion, or who is excluded or black listed in terms of Part VI of

the Public Procurement Regulations.

(3) Where an economic operator relies on the capacities of

other entities with regard to criteria relating to economic and

financial standing, the contracting entity may require that the

economic operator and those entities be jointly liable for the

execution of the contract.

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

as referred to in regulations 81 may rely on the capacities of

participants in the group or of other entities.

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

selection of candidates and tenderers in open, restricted or

negotiated procedures, in competitive dialogues or in innovation

partnerships include requirements relating to the economic and

financial capacity of the economic operator, or to its technical and

professional abilities, the economic operator may where necessary

and for a particular contract rely on the capacity of other entities,

whatever the legal nature of the link between itself and those

entities. With regard to criteria relating to the educational and

professional qualifications of the service provider or contractor or

those of the undertaking’s managerial staff or to the relevant

professional experience, economic operators may however only

rely on the capacities of other entities where the latter will perform

the works or services for which these capacities are required.

Where an economic operator wants to rely on the capacities of

other entities, it shall prove to the contracting entity that the

necessary resources shall be available to it, for example by

delivering a commitment by those entities to that effect.

(6) Contracting entities shall verify, in accordance with

regulation 166, whether the other entities on whose capacity the

economic operator intends to rely fulfil the relevant selection

criteria or whether there are grounds for exclusion or black-listing.

The contracting entity shall require that the economic operator

replaces an entity which does not meet a relevant selection

criterion, or in respect of which there are compulsory grounds for

exclusion to which the contracting entity has referred

Provided that where an economic operator relies on the

capacities of other entities with regard to criteria relating to

economic and financial standing, the contracting entity may require

that the economic operator and those entities be jointly liable for

the execution of the contract

Provided further that under the same conditions, a group of

economic operators as referred to in regulations 80 and 81 may rely

on the capacities of participants in the group or of other entities.

(7) In the case of works contracts, service contracts and siting

or installation operations in the context of a supply contract,

contracting entities 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 30(2) by a participant in that group.

(1) Contracting entities which so wish, after obtaining the

written prior approval of the Director, may establish and operate a

system of qualification of economic operators.

(2) Contracting entities which, after having obtained the prior

written approval of the Director, establish or operate a system of

qualification shall ensure that economic operators are at all times

able to request qualification.

(3) The qualification

system

may

involve

different

qualification stages.

(4) Contracting entities shall establish objective rules and

criteria for the exclusion and selection of economic operators

requesting qualification and objective criteria and rules for the

operation of the qualification system, covering matters such as

inscription in the system, periodic updating of the qualifications, if

any, and the duration of the system.

(5) Where those criteria and rules include technical

specifications, the provisions of regulations 76 to 78 shall apply.

The criteria and rules may be updated as required.

(6) The criteria and rules referred to in sub-regulations (3) to

(5) shall be made available to economic operators on request.

Those up dated cri teria and rul es shall be com muni cat ed to

interested economic operators.

(7) Where a contracting entity considers that the qualification

system of certain other entities or bodies meets its requirements, it

shall communicate to interested economic operators the names of

such other entities or bodies.

(8) When a call for competition is made by means of a notice

on the existence of a qualification system, specific contracts for the

works, supplies or services covered by the qualification system

shall be awarded by restricted procedures or negotiated procedures,

in which all tenderers and participants are selected among the

candidates already qualified in accordance with such a system.

(9) Any charges that are billed in connection with requests for

qualification or with updating or conserving an already obtained

qualification pursuant to the system shall be proportionate to the

generated costs.

(10) Where contracting entities choose to set up a qualification

system in accordance with this regulation, the system shall be the

subject of a notice as referred to in Schedule 20, indicating the

purpose of the qualification system and how to have access to the

rules concerning its operation.

(11) Contracting entities shall indicate the period of validity of

the qualification system in the notice on the existence of the

system. They shall notify the Publications Office of the European

Union of any change in period of validity, using the following

standard forms

(a) where the period of validity is changed without

terminating the system, the form for notices on the

existence of qualification systems;

(b) where the system is terminated, a contract award notice

referred to in regulation 65.

(12) A written record of qualified economic operators shall be

kept; it may be divided into categories according to the type of

contract for which the qualification is valid.

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 entity 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 171, 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 entity. 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

well t he t ende rs m ee t the award crite r ia. In ca se of doubt,

contracting entities shall verify effectively the accuracy of the

information and proof provided by the tenderers.

(7) The contracting entity 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 entity shall indicate the criteria in decreasing order of

importance.

(10) The relative weighting or order of importance shall be

specified, as appropriate, in the notice used as a means of calling

for competition, in the invitation to confirm interest, in the

invitation to tender or to negotiate, or in the specifications.

(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 entity 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 entities 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 entity 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 XV of Directive 2014/

25/EU of the European Parliament and of the Council of 26

February 2014 on Public Procurement of Entities operating in the

Water, Energy, Transport and Postal Services Sectors.

(1) This regulation shall apply to every contract or

framework agreement covered by these regulations, and every time

a dynamic purchasing system, where the estimated value of such

procedures falls under sub-regulation 30(1)(b).

(2) Contracting entities shall keep appropriate information on

each contract or framework agreement covered by these regulations

and each time a dynamic purchasing system is established. This

information shall be sufficient to permit them at a later date to

justify decisions taken in connection with

(a) the qualification and selection of economic operators

and the award of contracts;

(b) the use of negotiated procedures without a call for

competition by virtue of regulations 124 to 128;

(c

the non-application of regulations 14, 34, 39 to 42, 56

to 59, 63 to 69, 69, 71 to 78, 82 to 85, 92, 143 to 150,

154 to 171 and 174 to 180 by virtue of the derogations

provided for in these regulations;

(d) where necessary, the reasons why other means of

communication than electronic means for the

electronic submission have been used.

(3)

To the extent that the contract award notice drawn up

pursuant to regulations 65 or 136 contains the information required

in this regulation, contracting entities may refer to that notice.

(4) Contracting entities 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.

(5) The report, or its main elements, shall be communicated to

the Commission or the competent authorities, bodies or structures

where they so request.

(1) Contracting entities and, or the Director, as the case

may be, shall as soon as possible 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 or award a contract for

which there has been a call for competition or to recommence the

procedure, or not to implement a dynamic purchasing system.

(2) On request from the candidate or tenderer concerned,

contracting entities shall, as soon 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 76(9), (10) and (11), the reasons for

their decision of non-equivalence or their 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.

(3) Contracting entities may decide to withhold certain

information referred to in sub-regulations (1) and (2) regarding the

contract award, the conclusion of the framework agreement or the

admittance to a dynamic purchasing system is to be withheld where

its release would impede law enforcement or otherwise be contrary

to the public interest or would prejudice the legitimate commercial

interests of a particular economic operator, public or private, or

might prejudice fair competition between economic operators.

Abnormally Low Tenders and Variant Solutions

(1) Contracting entities 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 referred to in sub-regulation (1) 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 regulation

34(m);

(e) compliance with obligations referred to in regulation

83;

(f)

the possibility of the tenderer obtaining State aid.

(3) The contracting entity 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).

(4) Contracting entities 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 34(m).

(5) Where a contracting entity 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 entity, that the aid in

question was compatible with the internal market within the

meaning of Article 107 of the TFEU. Where the contracting entity

rejects a tender in those circumst ances, it shall inform the

Commission thereof.

(1) For tenders having an estimated value which falls

under regulation 30(1)(b), contracting entities may authorise or

require tenderers to submit variants which meet the minimum

requirement specified by the contracting entities.

(2) Contracting entities shall indicate in the procurement

documents whether or not they authorise or require variants and, if

so, the minimum requirements for their presentation, in particular

whether variants may be submitted only where a tender, which is

not a variant, has also been submitted.

(3) Where variants are authorised or required, contracting

entities shall also ensure that the chosen award criteria can be

applied to variants meeting those minimum requirements as well as

to conforming tenders which are not variants.

(4) In procedures for awarding supply or service contracts,

contracting entities that have authorised or required variants shall

not reject a variant on the sole ground that it would, where

successful, lead either to a service contract rather than a supply

contract or to a supply contract rather than a service contract.

Part VIII

Contract Performance and Modifications

Contracting entities may lay down special 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 170(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 under

regulation 30(1) and upon the prior approval of the Director a

contracting entity can order modifications to the contract 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 irrespective of their value, 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, software, services or

installations procured under the initial

procurement; and

(ii) Would cause significant inconvenience or

substantial duplication of costs for the

contracting entity;

(c) where all of the following conditions are fulfilled

(i)

the need for modification has been brought

about by circumstances which a diligent

contracting entity could not foresee;

(ii) the modification does not alter the overall nature

of the contract;

(d) where a new contractor replaces the one to which the

contracting entity had initially awarded the contract as

a consequence of either

(i)

an unequivocal review clause or option in

conformity with paragraph (a);

(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)

Provided that when a variation cumulatively exceeds the

amounts established under sub-regulation (3), the contracting entity

shall seek the prior approval of the Director.

(2) Contracting entities having modified a contract in the cases

set out under sub-regulation (1)(b) and (c) 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 15 and shall

be published in accordance with regulation 78.

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

under sub-regulation (5)(a) to (d) are met, contracts may equally be

modified without a new procurement procedure or ask for the prior

approval of the director 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 regulation 15; and

(b) ten per cent of the initial contract value for service and

supply contracts and below fifteen per cent 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-regulation (3), 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), (2) and (3), a modification shall

be considered to be substantial where one or more of the following

conditions is met

(a) the modification introduces conditions which, had they

been part of the initial procurement procedure, would

have allowed for the admission of other candidates

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 entity had initially awarded the contract in

other cases 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 works, supply or service contract or a framework

agreement during its term than those provided for under sub-

regulations (1), (2) and (3).

(1) When a modification of a tender with an estimated

value which falls under regulation 30(1)(b) which cumulatively

exceeds the amounts established under regulation 177(3) is sought

by the contracting entity, the latter shall seek the prior approval of

the Director.

(2) In exceptional circumstances where the urgent nature of the

modification to be carried out is such that the contracting entity

cannot possibly wait for the prior approval of the Director, the

contracting authority may proceed with the modification subject

that it adheres to the conditions mentioned in regulation 177.

Regulations 248 to 260 of the Public Procurement

Regulations shall mutatis mutandis apply to this regulation.

(1) Contracting entities can terminate a 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 177;

(b) the contractor has, at the time of contract award, been

in one of the situations referred to in Part VI of the

Public Procurement Regulations, 2016, 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 these regulations

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 his decision to terminate the contract, and this

without the need of any authorization or confirmation by any court

or Board.

Part IX

Remedies

Part IX of the Public Procurement Regulations shall

mutatis mutandis apply to these regulations.

PUBLIC PROCUREMENT OF ENTITIES IN THE WATER,

ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

Schedule 1

List of Activities as set out under paragraph (a) of the definition

of the term Works Contracts

In the event of any difference of interpretation between the CPV and the NACE, the

CPV nomenclature will apply.

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division Group

Class

Subject

Notes

Construction

T h i s d i v i s i o n i n c l u d e s : 45000000

construction of new

buildings and works,

restoring and common

repairs.

45.1

Site preparation

45100000

45.11

This class includes

45110000

-

demolition

of

buildings

and

other

structures,

-

clearing of building

sites,

-

earth

moving

excavation, landfill, levelling

and grading of construction

sites, trench digging, rock

removal, blasting, etc.,

-

site preparation for

mining,

-

overburden removal

and other development and

preparation of mineral

properties and sites.

This class also includes

-

building

site

drainage,

-

drainage

of

agricultural or forestry land.

45.12

Test drilling and This class includes

45120000

boring

-

test drilling, test

boring and core sampling for

construction, geophysical,

geological or similar

purposes.

This class excludes

-

drilling

of

production oil or gas wells,

see 11.20,

-

water well drilling,

see 45.25,

-

shaft sinking, see

45.25,

-

oil and gas field

exploration, geophysical,

geological and seismic

surveying, see 74.20.

PUBLIC PROCUREMENT OF ENTITIES IN THE WATER,

ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division Group

Class

Subject

Notes

45.2

Building

of

45200000

complete

constructions or

parts thereof;

civil engineering

45.21

General

This class includes

45210000

construction of -

construction of all Except

buildings and types

of

buildings

civil engineering c o n s t r u c t i o n o f c i v i l - 45213316

45220000

works

engineering constructions,

45231000

-

bridges, including 45232000

those for elevated highways,

viaducts, tunnels and

subways,

-

long-distance

pipelines, communicat ion

and power lines,

-

urban

pipelines,

urban communication and

power lines,

-

ancillary

urban

works,

-

assembly

and

erection of prefabricated

constructions on the site.

This class excludes

-

service

activities

incidental to oil and gas

extraction, see 11.20,

-

erection

of

complete prefabricated

constructions from self-

manufactured parts not of

concrete, see divisions 20, 26

and 28,

-

construction work,

other than buildings, for

stadiums, swimming pools,

gymnasiums, tennis courts,

golf courses and other sports

installations, see 45.23,

-

building

installation, see 45.3,

-

building

completion, see 45.4,

-

architectural

and

engineering activities, see

74.20,

-

project

manage-

ment for construction, see

74.20.

PUBLIC PROCUREMENT OF ENTITIES IN THE WATER,

ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division Group

Class

Subject

Notes

45.22

Erection of roof This class includes

45261000

covering and -

erection of roofs,

frames

-

roof covering,

-

waterproofing.

45.23

Constr uction of This class includes

45212212

highways, roads, -

of and DA03

construction

a i r f i e l d s a n d h i g h w a y s , s t r e e t s , r o a d s , 45230000

sport facilities

other

vehicular

a n d except

pedestrian ways,

- 45231000

-

construction

of

- 45232000

railways,

of - 45234115

-

construction

airfield runways,

-

construction work,

other than buildings, for

stadiums, swimming pools,

gymnasiums, tennis courts,

golf courses and other sports

installations,

-

painting

of

markings on road surfaces

and car parks.

This class excludes

-

preliminary

earth

moving, see 45.11.

45.24

Constr uction of T h i s

class

i n c l u d e s 45240000

water projects

construction of

-

waterways, harbour

and river works, pleasure

ports (marinas), locks, etc.,

-

dams and dykes,

-

dredging,

-

subsurface work.

PUBLIC PROCUREMENT OF ENTITIES IN THE WATER,

ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division Group

Class

Subject

Notes

45.25

Other

This class includes

45250000

construction -

construction

45262000

w o r k i n v o l v i n g activities specialising in one

special trades

aspect common to different

kinds of structures, requiring

specialised

skill

or

equipment,

-

construction

of

foundations, including pile

driving,

-

water well drilling

and construction, shaft

sinking,

-

erection of non-

self-manufactured steel

elements,

-

steel bending,

-

bricklaying

and

stone setting,

-

scaffolds and work

platform erecting and

dismantling, including

renting of scaffolds and work

platforms,

-

erection

of

chimneys and industrial

ovens.

This class excludes

-

renting of scaffolds

without erection and

dismantling, see 71.32.

45.3

Building

45300000

installation

45.31

I n s t a l l a t i o n o f This class includes

45213316

electrical wiring installation in buildings or 45310000

and fittings

other construction projects Except

of

- 45316000

-

electrical

wiring

and fittings,

-

telecommunica-

tions systems,

-

electrical

heating

systems,

-

residential antennas

and aerials,

-

fire alarms,

-

burglar

alarm

systems,

-

lifts and escalators,

-

lightning

conductors, etc.

PUBLIC PROCUREMENT OF ENTITIES IN THE WATER,

ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division Group

Class

Subject

Notes

45.32

Insulation work This class includes

45320000

activities

-

installation

in

buildings

or

other

construction projects of

thermal, sound or vibration

insulation.

This class excludes

-

waterproofing, see

45.22.

45.33

Plumbing

This class includes

45330000

-

installation

in

buildings

or

other

construction projects of

-

plumbing

and

sanitary equipment,

-

gas fittings,

-

heating, ventilation,

refrigeration or air-

conditioning equipment and

ducts,

-

sprinkler systems.

This class excludes

-

installation

of

electrical heating systems,

see 45.31.

45.34

O t h e r b u i l d i n g This class includes

45234115

installation

-

installation

of 45316000

illumination and signalling 45340000

systems for roads, railways,

airports and harbours,

-

installation

in

buildings

or

other

construction projects of

fittings and fixtures n.e.c.

45.4

Building

45400000

completion

45.41

Plastering

This class includes

45410000

-

application

in

buildings

or

other

construction projects of

interior and exterior plaster

or stucco, including related

lathing materials.

45.42

Joinery

This class includes

45420000

installation

-

installation of not

self-manufactured doors,

windows, door and window

frames, fitted kitchens,

staircases, shop fittings and

the like, of wood or other

materials,

PUBLIC PROCUREMENT OF ENTITIES IN THE WATER,

ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division Group

Class

Subject

Notes

-

interior completion

such as ceilings, wooden

wall coverings, movable

partitions, etc.

This class excludes

-

laying of parquet

and other wood floor

coverings, see 45.43.

45.43

F l o o r a n d w a l l This class includes

45430000

covering

-

laying,

tiling,

hanging or fitting in

buildings

or

other

construction projects of

-

ceramic, concrete or

cut stone wall or floor tiles,

-

parquet and other

wood floor coverings carpets

and linoleum floor coverings,

-

including of rubber

or plastic,

-

terrazzo,

marble,

granite or slate floor or wall

coverings,

-

wallpaper.

45.44

P a i n t i n g a n d This class includes

45440000

glazing

-

interior and exterior

painting of buildings,

-

painting of civil

engineering structures,

-

installation of glass,

mirrors, etc.

This class excludes

-

installation

of

windows, see 45.42.

45.45

O t h e r b u i l d i n g This class includes

45212212

completion

of and DA04

-

installation

private swimming pools,

45450000

-

steam

cleaning,

sand blasting and similar

activities for building

exteriors,

-

other

building

completion and finishing

work n.e.c.

This class excludes

-

interior cleaning of

buildings

and

other

structures, see 74.70.

NACE Rev 1

CPV code

CONSTRUCTION

Division Group

Class

Subject

Notes

45.5

Renting

of

45500000

construction or

demolition

equipment with

operator

45.50

This class excludes

45500000

-

renting

of

construction or demolition

mac hinery and equipment

without operators, see 71.32.

Schedule 2

List of Union Legal Acts

[Regulation 2(4)]

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

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

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

of regulation 2(4). The following lists procedures, ensuring adequate prior

transparency, for granting authorisations on the basis of other legal acts of the Union

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

(a) granting authorisation to operate natural gas installations in accordance

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

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

electricity production installations in accordance with Directive 2009/

72/EC;

(c) the granting in accordance with the procedures laid down in Article 9 of

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

which is not or shall not be reserved;

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

involving the exploitation of hydrocarbons in accordance with Directive

94/22/EC;

(e) public service contracts within the meaning of Regulation (EC) No

1370/2007 for the provision of public passenger transport services by

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

competitive tendering procedure in accordance with Article 5(3)

thereof, provided that its length is in conformity with Article 4(3) or (4)

of that Regulation.

PUBLIC PROCUREMENT OF ENTITIES IN THE WATER,

ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

Schedule 3

List of Union Legal Acts

[Regulation 24(5) and (6)]

Transport or distribution of gas or heat

Directive 2009/73/EC

Production, transmission or distribution of electricity

Directive 2009/72/EC

Production, transport or distribution of drinking water

[No entry]

Contracting entities in the field of rail services

Rail freight transport

Directive 2012/34/EU

International rail passenger transport

Directive 2012/34/EU

National rail passenger transport

[No entry]

Contracting entities in the field of urban railway, tramway, trolleybus or

motor bus services

[No entry]

Contracting entities in the field of postal services

Directive 97/67/EC

Extraction of oil or gas

Directive 94/22/EC

Exploration for and extraction of coal or other solid fuels

[No entry]

Contracting entities in the field of seaport or inlandportor other terminal

equipment

[No entry]

Contracting entities in the field of airport installations

[No entry]

Schedule 4

List of Central Purchasing Bodies

Department of Contracts

PUBLIC PROCUREMENT OF ENTITIES IN THE WATER,

ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

Schedule 5

Amended by

L.N. 26 of 2018;

Values of Thresholds

L.N.196 of 2020;

[Regulation 30(2)]

L.N. 26 of 2022;

L.N. 362 of

2024. The value of the thresholds, net of vat, applicable to Public Contracts shall be the

following

(a) €443,000 for supply and service contracts as well as for design contests;

(b) €5,538,000 for works contracts;

(c) €1,000,000 for service contracts for social and other specific services

listed in Schedule 17.

Schedule 6

Deadlines for the adoption of the Implementing Acts

(Regulation 25)

1. The implementing acts referred to in regulation 25 shall be adopted within

the following periods

(a) 90 working days where free access to a given market is presumed on the

basis of regulation 24(5) and (6);

(b) 130 working days in cases other than those referred to in paragraph (a).

The periods set out in paragraphs (a) and (b) shall be prolonged by 15 working

days where the request is not accompanied by a reasoned and substantiated position,

adopted by an independent national authority that is competent in relation to the

activity concerned, which thoroughly analyses the conditions for the possible

applicability of regulation 24(1) and (2) to the activity concerned in accordance with

regulation 24(3),(4),(5) and (6).

Those deadlines shall commence on the first working day following the date on

which the Commission receives the request referred to in regulation 25(1) and (2) or,

where the information to be supplied with the request is incomplete, on the working

day following the receipt of the complete information.

The periods set out in the first sub-paragraph may be extended by the Commission

with the agreement of the Member State or contracting entity which has presented

the request.

2. The Commission may require the Member State or the contracting entity

concerned or the independent national authority referred to under paragraph 1 or any

other competent national authority to provide all necessary information or to

supplement or clarify information given within an appropriate time limit. In the

event of late or incomplete answers, the periods set out in the first sub-paragraph of

paragraph 1 shall be suspended for the period between the expiry of the time limit set

in the request for information, and the receipt of the complete and correct

information.

PUBLIC PROCUREMENT OF ENTITIES IN THE WATER,

ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

Schedule 7

Requirements relating to tools and devices for the Electronic Receipt of Tenders,

Requests to participate, Applications for qualification

as well as Plans and Projects in Contests

Tools and devices for the electronic receipt of tenders, requests to participate,

applications for qualification as well as plans and projects in contests must

guarantee, through technical means and appropriate procedures, at least that

(a) the exact time and date of the receipt of tenders, requests to participate,

applications for qualification as well as the submission of plans and

projects can be determined precisely;

(b) it may be reasonably ensured that, before the time limits laid down, no-

one can have access to data transmitted under those requirements;

(c) only authorised persons may set or change the dates for opening data

received;

(d) during the various stages of the qualification procedure, the

procurement procedure or contest, access to all data submitted, or to

part thereof, must be possible only for authorised persons;

(e) only authorised persons must give access to data transmitted and only

after the prescribed date;

(f)

data received and opened in accordance with those requirements must

remain accessible only to persons authorised to acquaint themselves

therewith;

(g) where the access prohibitions or conditions referred to under paragraphs

(b) to (f) are infringed or there is an attempt to do so, it may be

reasonably ensured that the infringements or attempts are clearly

detectable.

Schedule 8

Amended by

Data to be inserted in the Periodic Indicative Notices

L.N. 26 of 2018.

Part A

Information to be included in the Periodic Indicative Notice

(Regulation 63)

Information to be included in all cases

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

address including NUTS code, telephone, fax number, e-mail and internet address of

the contracting entity and, where different, of the service from which additional

information may be obtained.

2. Main activity exercised.

3. (a) For supply contracts: nature and quantity or value of the services or

products to be supplied (CPV codes).

(b) For works contracts: nature and extent of the services to be provided,

the general characteristics of the work or of the lots by reference to the

work (CPV codes).

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(c) For service contracts: intended total procurement in each of the service

categories envisaged (CPV codes).

4. Date of dispatch of the notice or of dispatch of the notice of the publication

of this notice on the buyer profile.

5. Any other relevant information.

II. Additional information to be supplied where the notice is used as a means of

calling for competition or permits the reduction of the time limits for the receipt of

tenders

6. A reference to the fact that interested economic operators shall advise the

entity of their interest in the contract or contracts.

7. E-mail or internet address at which the specifications procurement

documents will be available for unrestricted and full direct access, free of charge.

Where unrestricted and full direct access, free of charge, is not available for the

reasons set out in regulation 72(2) and (4), an indication of how the procurement

documents can be accessed.

8. Where appropriate, state whether the contract is reserved for sheltered

workshops or whether its performance is reserved in the context of sheltered

employment programmes.

9. Time limit for the receipt of applications for an invitation to tender or to

negotiate.

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

work or category of service and description, stating if framework agreement(s) are

envisaged, including any options for further procurement and the estimated time

available for exercising those options as well as the number of renewals, if any. In

the case of recurring contracts, also, an estimate of the timing of the subsequent calls

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

combination of those is involved.

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

for the main place of delivery or performance in supplies and service; if the contract

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

12. Time limits for delivery or completion or duration of service contract and, as

far as possible, for starting.

13. Address to which interested undertakings shall send their expressions of

interest in writing.

14. Time limit for receipt of expressions of interest.

15. Language or languages authorised for the presentation of candidatures or

tenders.

16. Economic and technical conditions, and financial and technical guarantees

required of suppliers.

17. (a) Estimated date for initiating the procurement procedures in respect of

the contract or contracts (if known);

(b)

Type of procurement procedure (restricted procedures, whether or not

involving a dynamic purchasing system, or negotiated procedures).

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

contract is subject.

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19. Where appropriate, indication whether

(a)

electronic submission of tenders or requests to participate will be

required/accepted,

(b)

electronic ordering will be used,

(c)

electronic invoicing will be used,

(d)

electronic payment will be accepted.

20. Name and address of the body responsible for appeal and, where

appropriate, mediation procedures. Precise information concerning time limits for

lodging appeals, or, if need be, the name, address, telephone number, fax number and

e-mail address of the service from which this information may be obtained.

21 Where known, criteria referred to in regulation 170 to be used for award of

the contract. Except where the most economically advantageous tender is identified

on the basis of price alone, criteria representing the most economically advantageous

tender as well as their weighting or, where appropriate, the order of importance of

those criteria shall be mentioned, where they do not appear in the specifications, or

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

to negotiate.

Part B

Information to be included in Notices of Publication of a Periodic Indicative

Notice on a Buyer Profile not used as a means

of calling for Competition

(Regulation 63)

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

address including NUTS code, telephone, fax number, e-mail and internet address of

the contracting entity and, where different, of the service from which additional

information may be obtained.

2. Main activity exercised.

3. CPV Codes.

4. Internet address of the ‘buyer profile’ (URL).

5. Date of dispatch of the notice of the publication of the prior information

notice on the buyer profile.

Schedule 9

Information to be included in the Procurement Documents

relating to Electronic Auctions

(Regulation 158)

Where contracting entities have decided to hold an electronic auction, the

procurement documents shall include at least the following details

(a) the features whose values will be the subject of electronic auction,

provided that such features are quantifiable and can be expressed in

figures or percentages;

(b) any limits on the values which may be submitted, as they result from the

specifications relating to the subject of the contract;

(c) the information which will be made available to tenderers in the course

of the electronic auction and, where appropriate, when it will be made

available to them;

(d) the relevant information concerning the electronic auction process;

(e) the conditions under which the tenderers will be able to bid and, in

particular, the minimum differences which will, where appropriate, be

required when bidding;

(f)

the relevant information concerning the electronic equipment used and

the arrangements and technical specifications for connection.

Schedule 10

Features concerning Publication

1. Publication of notices

The notices referred to in Regulations 63, 64, 65, 68 135 and 169 must be sent by

the contracting entities to the Publications Office of the European Union and

published in accordance with the following rules

(a) Notices referred to in regulations 63, 64, 65, 68 135 and 169 shall be

published by the Publications Office of the European Union or by the

contracting entities in the event of a periodic indicative notice published

on a buyer profile in accordance with regulation 63.

In addition, contracting entities may publish this information on the

internet on a ‘buyer profile’ as referred to in point 2(b) below;

(b) The Publications Office of the European Union will give the contracting

entity the confirmation referred to in the second sub-paragraph of

regulation 66(4).

2. Publication of complementary or additional information

(a) Except where otherwise provided for in regulations 72(4) and (5)

contracting entities shall publish the procurement documents in their

entirety on the internet;

(b) The buyer profile may include periodic indicative notices as referred to

in regulation 63, information on ongoing invitations to tender,

scheduled purchases, contracts concluded, procedures cancelled and any

useful general information, such as a contact point, a telephone and a

fax number, a postal address and an e-mail address. The buyer profile

may also include periodic indicative notices used as a means of calling

for competition, which are published at national level pursuant to

regulation 67.

3. Format and procedures for the electronic transmission of notices

The format and procedure for sending notices electronically as established by the

Commission are made accessible at the internet address http://simap.eu.int.

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Schedule 11

Information to be included in Contract Notices

(Regulation 64)

Open Procedures

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

address including NUTS code, telephone, fax number, e-mail and internet address of

the contracting entity and, where different, of the service from which additional

information may be obtained

2. Main activity exercised

3. Where appropriate, state whether the contract is reserved for sheltered

workshops or whether its performance is reserved in the context of sheltered

employment programmes.

4. Nature of the contract (supply, works or service, where appropriate, state if

it is a framework agreement or a dynamic purchasing system), description (CPV

codes). Where appropriate, state whether tenders are requested for purchase, lease,

rental or hire purchase or any combination of those.

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

for the main place of delivery or performance in supplies and service.

6. For supplies and works

(a) nature and quantity of the products to be supplied (CPV codes),

including any options for further procurement and, if possible, the

estimated time available for exercising those options as well as the

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

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

competition for the products to be procured or the nature and extent of

the services to be provided and general nature of the work (CPV codes);

(b) indication of whether the suppliers may tender for some and, or all the

products required.

If, for works contracts, the work or the contract is subdivided into

several lots, the order of size of the different lots and the possibility of

tendering for one, for several or for all the lots;

(c) for works contracts: information concerning the purpose of the work or

the contract where the latter also involves the drawing-up of projects.

7. For services

(a) The nature and quantity of the products to be supplied, including any

options for further procurement and, if possible, the estimated time

available for exercising those options as well as the number of renewals,

if any. In the case of recurring contracts, also, if possible, an estimate of

the timing of the subsequent calls for competition for the services to be

procured;

(b) Indication of whether the performance of the service is reserved by law,

regulation or administrative provision to a particular profession;

(c) Reference of the law, regulation or administrative provision;

(d) Indication of whether legal persons shall indicate the names and

professional qualifications of the staff to be responsible for the

performance of the service;

(e) Indication of whether service providers may tender for a part of the

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services concerned.

8. Where known, indication of whether authorisation to submit variants exists

or not.

9. Time limits for delivery or completion or duration of service contract and, as

far as possible, the starting date.

10. E-mail or internet address at which the procurement documents will be

available for unrestricted and full direct access, free of charge.

Where unrestricted and full direct access, free of charge, is not available for the

reasons set out in regulation 72, an indication of how the procurement documents

can be accessed.

11. (a) Final date for receipt of tenders or indicative tenders where a dynamic

purchasing system is introduced;

(b) Address to which they shall be sent;

(c) Language or languages in which they shall be drawn up.

12. (a) Where applicable, the persons authorised to be present at the opening of

tenders;

(b) Date, time and place of such opening.

13. Where applicable, any deposits and guarantees required.

14. Main terms concerning financing and payment and/or references to the

provisions in which those are contained.

15. Where appropriate, the legal form to be taken by the grouping of economic

operators to whom the contract is awarded.

16. Minimum economic and technical conditions required of the economic

operator to whom the contract is awarded.

17. Period during which the tenderer is bound to keep open his tender.

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

contract is subject.

19. Criteria referred to in regulation 170 to be used for award of the contract.

Except where the most economically advantageous tender is identified on the basis

of price alone, criteria representing the most economically advantageous tender as

well as their weighting or, where appropriate, the order of importance of those

criteria shall be indicated where they do not appear in the specifications.

20. Where appropriate, date(s) and the reference(s) to publication in the Official

Journal of the European Union of the periodic information notice or of the notice of

the publication of this notice on the buyer profile to which the contract refers.

21. Name and address of the body responsible for appeal and, where

appropriate, mediation procedures. Precise information concerning time limits for

lodging appeals, or, if need be, the name, address, telephone number, fax number and

e-mail address of the department from which this information may be obtained.

22. Date of dispatch of the notice by the contracting entity.

23. Any other relevant information.

B.

Restricted Procedures.

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

address including NUTS code, telephone, fax number, e-mail and internet address of

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the contracting entity and, where different, of the service from which additional

information may be obtained.

2. Main activity exercised.

3. Where appropriate, state whether the contract is reserved for sheltered

workshops or whether its performance is reserved in the context of sheltered

employment programmes.

4. Nature of the contract (supplies, works or services; where appropriate, state

if it is a framework agreement); description (CPV codes). Where appropriate, state

whether tenders are requested for purchase, lease, rental or hire purchase or any

combination of those.

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

for the main place of delivery or performance in supplies and service.

6. For supplies and works

(a) The nature and quantity of the products to be supplied (CPV codes),

including any options for further procurement and, if possible, the

estimated time available for exercising those options as well as the

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

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

competition for the products to be procured or the nature and extent of

the services to be provided and general nature of the work (CPV codes);

(b) Indication of whether the suppliers may tender for some and, or all the

products required.

If, for works contracts, the work or the contract is subdivided into

several lots, the order of size of the different lots and the possibility of

tendering for one, for several or for all the lots;

(c) Information concerning the purpose of the work or the contract where

the latter also involves the drawing-up of projects.

7. For services

(a) The nature and quantity of the products to be supplied, including any

options for further procurement and, if possible, the estimated time

available for exercising those options as well as the number of renewals,

if any. In the case of recurring contracts, also, if possible, an estimate of

the timing of the subsequent calls for competition for the services to be

procured;

(b) Indication of whether the performance of the service is reserved by law,

regulation or administrative provision to a particular profession;

(c) Reference to the law, regulation or administrative provision;

(d) Indication of whether legal persons shall indicate the names and

professional qualifications of the staff to be responsible for the

performance of the service;

(e) Indication of whether service providers may tender for a part of the

services concerned.

8. Where known, indication of whether authorisation to submit variants exists

9. Time limits for delivery or completion or duration of the contract and, as far

as possible, for starting.

10. Where appropriate, the legal form to be taken by the grouping of economic

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operators to whom the contract is awarded.

11. (a) Final date for receipt of requests to participate;

(b) Address to which they shall be sent;

(c) Language or languages in which they shall be drawn up.

12. Final date for dispatch of invitations to tender.

13. Where applicable, any deposits and guarantees required.

14. Main terms concerning financing and payment and, or references to the

provisions in which those are contained.

15. Information concerning the economic operator’s position and the minimum

economic and technical conditions required of him.

16. Criteria referred to in regulation 170 be used for award of the contract.

Except where the most economically advantageous tender is identified on the basis

of price alone, criteria representing the most economically advantageous tender as

well as their weighting or, where appropriate, the order of importance of those

criteria shall be indicated where they do not appear in the specifications or will not

be indicated in the invitation to tender.

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

contract is subject.

18. Where appropriate, the date(s) and reference(s) to publication in the Official

Journal of the European Union of the periodic information notice or of the notice of

the publication of this notice on the buyer profile to which the contract refers.

19. Name and address of the body responsible for appeal and, where

appropriate, mediation procedures. Precise information concerning time limits for

lodging appeals, or, if need be, the name, address, telephone number, fax number and

e-mail address of the service from which this information may be obtained.

20. Date of dispatch of the notice by the contracting entities.

21. Any other relevant information.

C.

Negotiated Procedures

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

address including NUTS code, telephone, fax number, e-mail and internet address of

the contracting entity and, where different, of the service from which additional

information may be obtained.

2. Main activity exercised.

3. Where appropriate, state whether the contract is reserved for sheltered

workshops or whether its performance is reserved in the context of sheltered

employment programmes.

4. Nature of the contract (supplies, works or services; where appropriate, state

if it is a framework agreement); description (CPV codes). Where appropriate, state

whether tenders are requested for purchase, lease, rental or hire purchase or any

combination of those.

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

for the main place of delivery or performance in supplies and service.

6. For supplies and works

(a) The nature and quantity of the products to be supplied (CPV codes),

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including any options for further procurement and, if possible, the

estimated time available for exercising those options as well as the

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

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

competition for the products to be procured or the nature and extent of

the services to be provided and general nature of the work (CPV codes);

(b) Indication of whether the suppliers may tender for some and, or all the

products required.

If, for works contracts, the work or the contract is subdivided into

several lots, the order of size of the different lots and the possibility of

tendering for one, for several or for all the lots;

(c) For works contracts: information concerning the purpose of the work or

the contract where the latter also involves the drawing-up of projects.

7. For services

(a) The nature and quantity of the services to be supplied, including any

options for further procurement and, if possible, the estimated time

available for exercising those options as well as the number of renewals,

if any. In the case of recurring contracts, also, if possible, an estimate of

the timing of the subsequent calls for competition for the services to be

procured;

(b) Indication of whether the performance of the service is reserved by law,

regulation or administrative provision to a particular profession;

(c) Reference of the law, regulation or administrative provision;

(d) Indication of whether legal persons shall indicate the names and

professional qualifications of the staff to be responsible for the

performance of the service;

(e) Indication of whether service providers may tender for a part of the

services concerned.

8. Where known, indication of whether authorisation to submit variants exists

9. Time limits for delivery or completion or duration of the contract and, as far

as possible, for starting.

10. Where appropriate, the legal form to be taken by the grouping of economic

operators to whom the contract is awarded.

11. (a) Final date for receipt of requests to participate;

(b) Address to which they shall be sent;

(c) Language or languages in which they shall be drawn up.

12. Where appropriate, any deposits and guarantees required.

13. Main terms concerning financing and payment and, or references to the

provisions in which those are contained.

14. Information concerning the economic operator’s position and the minimum

economic and technical conditions required of him.

15. Criteria referred to in regulation 170 to be used for award of the contract.

Except where the most economically advantageous tender is identified on the basis

of price alone, criteria representing the most economically advantageous tender as

well as their weighting or, where appropriate, the order of importance of those

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criteria shall be indicated where they do not appear in the specifications or will not

be indicated in the invitation to negotiate.

16. Where appropriate, the names and addresses of the economic operators

already selected by the contracting entity.

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

contract is subject.

18. Where appropriate, the dates and reference(s) of publication in the Official

Journal of the European Union of the periodic information notice or of the notice of

the publication of this notice on the buyer profile to which the contract refers.

19. Name and address of the body responsible for appeal and, where

appropriate, mediation procedures. Precise information concerning time limits for

lodging appeals, or, if need be, the name, address, telephone number, fax number and

e-mail address of the service from which this information may be obtained.

20. Date of dispatch of the notice by the contracting entity.

21. Any other relevant information.

Schedule 12

Information to be included in the Contract Award Notice

(Regulation 65)

I.

Information for publication in the Official Journal of the European Union

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

address including NUTS code, telephone, fax number, e-mail and internet address of

the contracting entity and, where different, of the service from which additional

information may be obtained.

2. Main activity exercised.

3. Nature of the contract (supplies, works or services and CPV codes; where

appropriate state if it is a framework agreement).

4. At least a summary indication of the nature and quantity of the products,

works or services provided.

5. (a) Form of the call for competition (notice on the existence of a system of

qualification; periodic notice; call for tenders);

(b) Date(s) and reference(s) of publication of the notice in the Official

Journal of the European Union;

(c) In the case of contracts awarded without a prior call for competition,

indication of the relevant provision of regulations 125 to 127.

6. Procurement procedure (open, restricted or negotiated).

7. Number of tenders received, specifying

(a) number of tenders received from economic operators which are SMEs,

(b) number of tenders received from abroad,

(c) number of tenders received electronically.

In the case of multiple awards (lots, multiple framework agreements), this

information shall be given for each award.

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8. Date of the conclusion of the contract(s) or of the framework agreement(s)

following the decision to award or conclude it/them.

9.

10. For each award, name, address including NUTS code, telephone, fax

number, e-mail address and internet address of the successful tenderer(s) including

(a) information whether the successful tenderer is an SME,

(b) information whether the contract was awarded to a consortium.

11. State, where appropriate, whether the contract has been, or may be,

subcontracted.

12. Price paid or the prices of the highest and lowest tenders taken into account

in the award of the contract.

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

appropriate, mediation procedures. Precise information concerning the time limit for

lodging appeals, or, if need be, the name, address, telephone number, fax number and

e-mail address of the service from which this information may be obtained.

14. Optional information

-

value and share of the contract which has been or may be subcontracted

to third parties,

-

award criteria.

II.

Information not intended for publication

15. Number of contracts awarded (where an award has been split between

several suppliers).

16. Value of each contract awarded.

17. Country of origin of the product or service (Community origin or non-

Community origin; if the latter, broken down by third country).

18. Which award criteria were used?

19. Was the contract awarded to a tenderer who submitted a variant, in

accordance with regulations 175(1) to (3)?

20. Were any tenders excluded on the grounds that they were abnormally low, in

accordance with regulation 174.

21. Date of transmission of the notice by the contracting entity.

Schedule 13

Contents of the Invitations to Submit a Tender, Participate

in the Dialogue, to Negotiate or to Confirm Interest

(Regulation 73)

1. The invitation to submit a tender, to participate in the dialogue or to

negotiate provided for under regulation 73 must contain at least

(a) the final date for receipt of tenders, the address to which they are to be

sent, and the language or languages in which they are to be drawn up.

However, in the case of contracts awarded through a competitive

dialogue or an innovation partnership, this information shall not appear

in the invitation to negotiate but it shall appear in the invitation to

submit a tender;

(b) in the case of competitive dialogue the date and the address set for the

start of consultation and the language or languages used;

(c) a reference to any published call for competition;

(d) an indication of any documents to be attached;

(e) the criteria for the award of the contract, where they are not indicated in

the notice on the existence of a qualification system used as a means of

calling for competition;

(f)

the relative weighting of the contract award criteria or, where

appropriate, the order of importance of such criteria, if this information

is not given in the contract notice, the notice on the existence of a

qualification system or the specifications.

2. When a call for competition is made by means of a periodic indicative

notice, contracting entities shall subsequently invite all candidates to confirm their

interest on the basis of detailed information on the contract concerned before

beginning the selection of tenderers or participants in negotiations.

This invitation shall include at least the following information

(a) nature and quantity, including all options concerning complementary

contracts and, if possible, the estimated time available for exercising

those options for renewable contracts, the nature and quantity and, if

possible, the estimated publication dates of future notices of

competition for works, supplies or services to be put out to tender;

(b) type of procedure: restricted or negotiated;

(c) where appropriate, the date on which the delivery of supplies or the

execution of works or services is to commence or terminate;

(d) where electronic access cannot be offered, the address and closing date

for the submission of requests for procurement documents and the

language or languages in which they are to be drawn up;

(e) the address of the contracting entity;

(f)

economic and technical conditions, financial

guarantees

and

information required from economic operators;

(g) the form of the contract which is the subject of the invitation to tender

purchase, lease, hire or hire-purchase, or any combination of those; and

(h) the contract award criteria and their weighting or, where appropriate,

the order of importance of such criteria, if this information is not given

in the indicative notice or the specifications or in the invitation to tender

or to negotiate.

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Schedule 14

List of International Social and Environmental Conventions

ILO Convention 87 on Freedom of Association and the Protection of the

Right to Organise;

ILO Convention 98 on the Right to Organise and Collective Bargaining;

ILO Convention 29 on Forced Labour;

ILO Convention 105 on the Abolition of Forced Labour;

ILO Convention 138 on Minimum Age;

ILO Convention 111 on Discrimination (Employment and Occupation);

ILO Convention 100 on Equal Remuneration;

ILO Convention 182 on Worst Forms of Child Labour;

Vienna Convention for the protection of the Ozone Layer and its Montreal

Protocol on substances that deplete the Ozone Layer;

Basel Convention on the Control of Transboundary Movements of

Hazardous Wastes and their Disposal (Basel Convention);

Stockholm Convention on Persistent Organic Pollutants (Stockholm POPs

Convention);

Convention on the Prior Informed Consent Procedure for Certain Hazardous

Chemicals and Pesticides in International Trade (UNEP/FAO) (The PIC

Convention) Rotterdam, 10/09/1998 and its 3 regional Protocols.

Schedule 15

Information to be included in Notices of Modifications of a Contract during its term

(Regulation 177(1))

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

address including NUTS code, telephone, fax number, e-mail and internet address of

the contracting entity and, where different, of the service from which additional

information may be obtained.

2. Main activity exercised.

3. CPV codes.

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

for the main place of delivery or performance in supplies and service.

5. Description of the procurement before and after the modification: nature and

extent of the works, nature and quantity or value of supplies, nature and extent of

services.

6. Where applicable, increase in price caused by the modification.

7. Description of the circumstances which have rendered necessary the

modification.

8. Date of contract award decision.

9. Where applicable, the name, address including NUTS code, telephone, fax

number, e-mail address and internet address of the new economic operator or

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operators.

10. Information whether the contract is related to a project and, or programme

financed by Union funds.

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

appropriate, mediation procedures. Precise information concerning the deadline for

review procedures, or if need be the name, address, telephone number, fax number

and e-mail address of the service from which this information may be obtained.

Schedule 16

Services

(Regulation 134)

CPV Code

Description

79611000-0; 75200000-8; 75231200-6; 75231240-8; 79622000-0 Health, social and related

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

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

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

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

[Private households with employed persons] and 98513000-2 to

98514000-9 [Manpower services for households, Agency staff

services for households, Clerical staff services for households,

Temporary staff for households, Home-help services and Domestic

services]

85321000-5 and 85322000-2, 75000000-6 [Administration, Administrative, social,

defence and social security services], 75121000-0, 75122000-7, educational, healthcare

75124000-1; from 79995000-5 to 79995200-7; from 80000000-4 and cultural services

Education and training services to 80660000-8; from 92000000-1

to 92342200-2; from 92360000-2 to 92700000-8;

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

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

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

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

organisation services], 79955000-3[Fashion shows organisation

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

75300000-9

Compulsory social

security

provided that these

services are not covered

by these regulations

where they are organised

as non-economic services

of general interest. A

contracting authority is

free to organise the

provision of compulsory

social services or of other

services as services of

general interest or as

non-economic services of

general interest.

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

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

PUBLIC PROCUREMENT OF ENTITIES IN THE WATER,

ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

CPV Code

Description

9 8 0 0 0 0 0 0 - 3 ; 9 8 1 2 0 0 0 0 - 0 ; 9 8 1 3 2 0 0 0 - 7 ; 9 8 1 3 3 11 0 - 8 a n d Other community, social

98130000-3

and personal services

including

furnished by trade

unions,

organisations, youth

associ ati ons and other

membership organisation

services.

98131000-0

Religious services

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

[55521000-8 Catering services for private households, 55521100- services

9 Meals-on-wheels services, 55521200-0 Meal delivery service].

55520000-1 Catering services, 55522000-5 Catering services for

transport enterprises, 55523000-2 Catering services for other

enterprises or other institutions, 55524000-9 School catering

services 55510000-8 Canteen services, 55511000-5 Canteen and

other restricted-clientele cafeteria services, 55512000-2 Canteen

management services, 55523100-3 School-meal services

79100000-5 to 79140000-7; 75231100-5

Legal services, to the

extent not excluded

pursuant to r egulation

18(1)(c) to (g), 21(c)

75100000-7 to 75120000-3; 75123000-4; 75125000-8 to O t he r ad m in i s t r at i v e

75131000-3

services and government

services

75200000-8 to 75231000-4

Provision of services to

the community

7 5 2 3 1 2 1 0 - 9 t o 7 5 2 3 1 2 3 0 - 5 ; 7 5 2 4 0 0 0 0 - 0 t o 7 5 2 5 2 0 0 0 - 7 ; Prison related services,

794300000-7; 98113100-9

public security and

rescue ser vices, to the

extent not excluded

pursuant to r egulation

18(1)

79700000-1 to 79721000-4 [Investigation and security services, I n v e s t i g a t i o n

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

Surveillance services, Tracing system services, Absconder-tracing

services, Patrol services, Identification badge release services,

Investigation services and Detective agency services] 79722000-

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

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

and bodies] and 98910000-5 [Services specific to international

organisations and bodies]

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

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

6 4 111 0 0 0 - 7 [ P o s t a l s e r v i c e s r e l a t e d t o n e w s p a p e r s a n d

periodicals], 64112000-4 [Postal services related to letters],

64113000-1 [Postal services related to parcels], 64114000-8 [Post

office counter services], 64115000-5 [Mailbox rental], 64116000-

2 [Post-restante services], 64122000-7 [Internal office mail and

messenger services]

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

services]

Schedule 17

Information to be included in Notices concerning Contracts

for Social and Other Specific Services

(Regulation 135)

Part A Contract notice

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

address including NUTS code, telephone, fax number, e-mail and internet address of

the contracting entity and, where different, of the service from which additional

information may be obtained.

2. Main activity exercised.

3. Description of the services or categories thereof and where applicable,

incidental works and supplies to be procured, including an indication of the

quantities or values involved, CPV codes.

4. NUTS code for the main place of performance of the services.

5. Where appropriate, state whether the contract is reserved for sheltered

workshops or whether its performance is reserved in the context of sheltered

employment programmes.

6. Main conditions to be fulfilled by the economic operators in view of their

participation, or, where appropriate, the electronic address where detailed

information may be obtained.

7. Time limit(s) for contacting the contracting entity in view of participation.

8. Any other relevant information.

Part B Periodic indicative notice

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

address including NUTS code, e-mail and internet address of the contracting entity.

2. Brief description of the contract in question including CPV codes.

3. As far as already known

(a) NUTS code for the main location of works in case of works or NUTS

code for the main place of delivery or performance in case of supplies

and services,

(b) time-frame for delivery or provision of supplies, works or services and

duration of the contract,

(c) conditions for participation, including

(i)

where appropriate, indication whether the contract is restricted to

sheltered workshops, or whether its execution is restricted to the

framework of protected job programmes,

(ii) where appropriate, indication whether the execution of the service

is reserved by law, regulation or administrative provision to a

particular profession,

(d) brief description of the main features of the award procedure to be

applied.

4. A reference to the fact that interested economic operators shall advise the

contracting entity of their interest in the contract or contracts and time limits for

receipt of expressions of interest and address to which expressions of interest shall

be transmitted.

PUBLIC PROCUREMENT OF ENTITIES IN THE WATER,

ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

Part C Notice on the existence of a qualification system

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

address including NUTS code, e-mail and internet address of the contracting entity.

2. Brief description of the contract in question including CPV codes.

3. As far as already known

(a) NUTS code for the main location of works in case of works or NUTS

code for the main place of delivery or performance in case of supplies

and services,

(b)

time-frame for delivery or provision of supplies, works or services and

duration of the contract,

(c) conditions for participation, including

(i)

where appropriate, indication whether the contract is restricted to

sheltered workshops, or whether its execution is restricted to the

framework of protected job programmes,

(ii) where appropriate, indication whether the execution of the service

is reserved by law, regulation or administrative provision to a

particular profession,

(d) brief description of the main features of the award procedure to be

applied.

4. A reference to the fact that interested economic operators shall advise the

contracting entity of their interest in the contract or contracts and time limits for

receipt of expressions of interest and address to which expressions of interest shall

be transmitted.

5. Period of validity of the qualification system and the formalities for its

renewal.

Part D Contract award notice

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

address including NUTS code, telephone, fax number, e-mail and internet address of

the contracting entity and, where different, of the service from which additional

information may be obtained.

2. Main activity exercised.

3. At least a summary indication of the nature and quantity of the services

and where applicable, incidental works and supplies provided.

4. Reference of publication of the notice in the Official Journal of the

European Union.

5. Number of tenders received.

6. Name and address of the chosen economic operator(s).

7. Any other relevant information.

Schedule 18

Information to be included in the Design Contest Notice

(Regulation 68(1)

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

address including NUTS code, telephone, fax number, e-mail and internet address of

the contracting entity and, where different, of the service from which additional

information may be obtained.

2. Main activity exercised.

3. Project description (CPV codes).

4. Nature of the contest: open or restricted.

5. In the case of open contests: final date for receipt of projects.

6. In the case of restricted contests

(a) the number of participants envisaged, or range;

(b) where applicable, names of participants already selected;

(c) criteria for the selection of participants;

(d) final date for receipt of requests to participate.

7. Where applicable, indication of whether participation is reserved to a

particular profession.

8. Criteria to be applied in the evaluation of projects.

9. Where applicable, names of the selected members of the jury.

10. Indication of whether the decision of the jury is binding on the authority.

11. Where applicable, number and value of prizes.

12. Where applicable, details of payments to all participants.

13. Indication of whether the prize-winners are permitted any follow-up

contracts.

14. Name and address of the body responsible for the appeal and, where

appropriate, mediation procedures. Precise information concerning the time limit for

lodging appeals, or, if need be, the name, address, telephone number, fax number and

e-mail address of the service from which this information may be obtained.

15. Date of dispatch of the notice.

16. Any other relevant information.

PUBLIC PROCUREMENT OF ENTITIES IN THE WATER,

ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

Schedule 19

Information to be included in the Results of Design Contest Notices

(Regulation 68(1)

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

address including NUTS code, telephone, fax number, e-mail and internet address of

the contracting entity and, where different, of the service from which additional

information may be obtained.

2. Main activity exercised.

3. Project description (CPV codes).

4. Total number of participants.

5. Number of foreign participants.

6. Winner(s) of the contest.

7. Where applicable, the prize(s).

8. Other information.

9. Reference of the design contest notice.

10. Name and address of the body responsible for the appeal and, where

appropriate, mediation procedures. Precise information concerning the time limit for

lodging appeals, or, if need be, the name, address, telephone number, fax number and

e-mail address of the service from which this information may be obtained.

11. Date of dispatch of the notice.

Schedule 20

Added by

L.N. 26 of 2018.

INFORMATION TO BE INCLUDED IN THE

NOTICE ON THE EXISTENCE OF A

QUALIFICATION SYSTEM

(as referred to in

regulations 89(2)(b) and 169(10))

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

address including NUTS code, telephone, fax number, e-mail and internet address of

the contracting entity and, where different, of the service from which additional

information may be obtained.

2. Main activity exercised.

3. Where appropriate, state whether the contract is reserved for sheltered

workshops or whether its performance is reserved in the context of sheltered

employment programmes.

4. Purpose of the qualification system (description of the products, services or

works or categories thereof to be procured through the system - CPV codes). NUTS

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

place of delivery or performance in supplies and service.

5. Conditions to be fulfilled by the economic operators in view of their

PUBLIC PROCUREMENT OF ENTITIES IN THE WATER,

ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

qualification pursuant to the system and the methods according to which each of

those conditions will be verified. Where the description of such conditions and

verification methods is voluminous and based on documents available to interested

economic operators, a summary of the main conditions and methods and a reference

to those documents shall be sufficient.

6. Period of validity of the qualification system and the formalities for its

renewal.

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

8. Address where further information and documentation concerning the

qualification system can be obtained (where different from the addresses mentioned

under paragraph 1).

9. Name and address of the body responsible for appeal and, where

appropriate, mediation procedures. Precise information concerning time limits for

lodging appeals, or, if need be, the name, address, telephone number, fax number and

e-mail address of the service from which this information may be obtained.

10. Where known, criteria referred to in regulation 170 to be used for award of

the contract. Except where the most economically advantageous tender is identified

on the basis of price alone, criteria representing the most economically advantageous

tender as well as their weighting or, where appropriate, the order of importance of

those criteria, shall be mentioned where they do not appear in the specifications or

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

11. Where appropriate, an indication whether

(a)

electronic submission of tenders or requests to participate will be

required/accepted,

(b)

electronic ordering will be used,

(c)

electronic invoicing will be used,

(d)

electronic payment will be accepted.

12. Any other relevant information.