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PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY REGULATIONS
Table of Provisions (47)
Statutory Text (47 Articles)
PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR
ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY
Public Procurement of Contracting Authorities or Entities
in the fields of Defence and Security Regulations
The title of these regulations is the Public Procurement of
Contracting Authorities or Entities in the fields of Defence and
Security Regulations.
Services referred to in regulations 3 and 16
Category
Subject
CPV Reference No
Maintenance and repair services
50000000-5, from 50100000-6 to
50884000-5 (except from
50310000-1 to 50324200-4 and
5011651 0-9, 50190 000-3,
50229000-6, 50243000-0) and
from 51000000-9 to 51900000-1
Foreign military-aid-related services 75211300-1
Defence services, military defence 7 5 2 2 0 0 0 0 - 4 , 7 5 2 2 1 0 0 0 - 1 ,
services and civil defence services
75222000-8
Investigation and security services
From 79700000-1 to 79720000-7
Land transport services
60000000-8, from 60100000-9 to
60183000-4 (except 60160000-7,
60161000-4),
and
from
64120000-3 to 64121200-2
Air transport services of passengers 60400000-2, from 60410000-5 to
and freight, except transport of mail 60424120-3 (except 60411000-2,
60421000-5), from 60440000-4 to
60445000-9 and 60500000-3
Transport of mail by land and by air 6 0 1 6 0 0 0 0 - 7 , 6 0 1 6 1 0 0 0 - 4 ,
60411000-2, 60421000-5
Rail transport services
From 60200000-0 to 60220000-6
Water transport services
From 60600000-4 to 60653000-0,
and from 63727000-1 to
63727200-3
Supporting and auxiliary transport From 63100000-0 to 63111000-0,
services
from 63120000-6 to 63121100-4,
63122000-0, 63512000-1 and
from 63520000-0 to 6370000-6
Telecommunication services
From 64200000-8 to 64228200-2,
72318000-7, and from 72700000-
7 to 72720000-3
Financial services: Insurance services From 66500000-5 to 66720000-3
Computer and related services
From 50310000-1 to 50324200-4,
from 72000000-5 to 72920000-5
( e x ce p t 7 2 3 1 8 0 0 0 - 7 a n d f r o m
72700000-7 to 72720000-3),
79342410-4, 9342410-4
Research and development services From 73000000-2 to 73436000-7
(except research and development
services referred to in regulation
14(j)) and evaluation tests
Accounting,
auditing
a n d From 79210000-9 to 79212500-8
bookkeeping services
PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR
ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY
Category
Subject
CPV Reference No
M a n a g e m e n t c o n s u l t i n g s e r v i c e s From 73200000-4 to 73220000-0,
(except arbitration and conciliation from 79400000-8 to 79421200-3
services) and related services
an d 793 42000 -3, 793 42100 -4,
79342300-6, 79342320-2,
79342321-9, 79910000-6,
79991000-7 and 98362000-8
Architectural services; engineering From 71000000-8 to 71900000-7
services and integrated engineering ( e x c e p t 7 1 5 5 0 0 0 0 - 8 ) a n d
s e r v i c e s ; u r b a n p l a n n i n g a n d 79994000-8
landscape engineering services;
related scientific and technical
consulting services; technical testing
and analysis services
B u i l d i n g - c l e a n i n g s e r v i c e s a n d From 70300000-4 to 70340000-6
property management services
and from 90900000-6 to
90924000-0
Sewage and refuse disposal services; From 90400000-1 to 90743200-9
sanitation and similar services
(except 90712200-3), from
90910000-9 to 90920000-2 and
50190000-3, 50229000-6,
50243000-0
Training and simulation services in 8 0 3 3 0 0 0 0 - 6 , 8 0 6 0 0 0 0 0 - 0 ,
the fields of defence and security
80610000-3, 80620000-6,
80630000-9, 80640000-2,
80650000-5, 80660000-8
For the purposes of these regulations, and unless the
context otherwise requires
"candidate" means an economic operator which has sought an
invitation to take part in a restricted or negotiated procedure or a
competitive dialogue;
"central purchasing body" means the Department of Contracts or
a European public body, which
(a) acquires supplies and, or services intended for
contracting authorities or entities, or,
(b) awards contracts or concludes framework agreements
for works, supplies or services intended for
contracting authorities or entities;
"civil purchases" means contracts not subject to regulation 3
covering the procurement of non-military products, works or
services for logistical purposes and concluded in accordance with
the conditions specified in regulation 18;
"classified information" means any information or material,
regardless of the form, nature or mode of transmission thereof, to
which a certain level of security classification or protection has
been attributed, and which, in the interests of national security and
i n ac c o rd a n c e w i th th e l a ws , r e g u la ti o ns o r a dm i n ist r a t iv e
provisions in force in the Member State concerned, requires
protection against any misappropriation, destruction, removal,
disclosure, loss or access by any unauthorised individual, or any
other type of compromise;
"Commission" means the Commission of the European Union;
"common procurement vocabulary (CPV)" means the reference
nomenclature applicable to contracts awarded by contracting
authorities, as adopted by Regulation (EC) No 2195/2002;
" c o m p e t i t i v e d i a l o g u e " m e a ns a p r o c e d u r e i n w h i c h a n y
economic operator may request to participate and whereby the
contracting authority conducts a dialogue with the candidates
admitted to that procedure, with the aim of developing one or more
suitable alternatives capable of meeting its requirements, and on
the basis of which the candidates chosen are invited to tender. For
the purpose of recourse to the procedure, a public contract is
considered to be "particularly complex" where the contracting
authorities are not objectively able to define the technical means in
accordance with regulation 2 of the Public Procurement
Regulations;
"contracting authorities" means contracting authorities as
referred to in regulation 2 of the Public Procurement Regulations;
"contracting entities" means contracting entities as referred to in
regulation 2(2) of the Public Procurement of Entities Operating in
t h e Wa t e r, E n e rg y, Tr a n s p o r t a n d P o s t a l S e r v i c e s S e c t o r s
Regulations;
"contractor" means a natural or legal person or public entity or
group of such persons and, or bodies which offers on the market the
execution of works and, or a work;
"crisis" means any situation in a Member State or third country
in which a harmful event has occurred which clearly exceeds the
dimensions of harmful events in everyday life and which
substantially endangers or restricts the life and health of people, or
has a substantial impact on property values, or requires measures in
order to supply the population with necessities; a crisis shall also
be deemed to have arisen if the occurrence of such a harmful event
is deemed to be impending; armed conflicts and wars shall be
regarded as crises for the purposes of these regulations;
"Director" means the Head of the Department of Contracts;
"economic operator" means a contractor, supplier or service
provider;
"electronic auction" means a repetitive process involving an
electronic device for the presentation of new prices, revised
downwards, and, or new values concerning certain elements of
tenders, which occurs after an initial full evaluation of the tenders,
enabling them to be ranked using automatic evaluation methods.
Certain service contracts and certain works contracts having as
their subject-matter intellectual performances, such as the design of
works, may not be the object of electronic auctions;
"electronic means" means any means using electronic equipment
for the processing (including digital compression) and storage of
data which is transmitted, conveyed and received by wire, by radio,
by optical means or by other electromagnetic means;
"European Union" means the European Union as referred to in
the Treaty;
"Framework agreement" means an agreement between one or
more contracting authorities or entities 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 price and, where appropriate, the quantity envisaged;
"Government" means the State, regional or local government of a
Member State or third country;
"life cycle" means all the possible successive stages of a product,
that is research and development, industrial development,
production, repair, modernisation, modification, maintenance,
logistics, training, testing, withdrawal and disposal;
"Member State" means a member state of the European Union;
"military equipment" means equipment specifically designed or
adapted for military purposes and intended for use as an arm,
munitions or war material;
"negotiated procedures" means procedures in which the
contracting authority or entity invites the economic operators of its
choice and negotiates the terms of the contract with one or more of
these;
"public contract" means a contract for pecuniary interest
concluded in writing between one or more economic operators and
one or more contracting authorities and having as its object the
execution of works, the supply of products or the provision of
services;
"related undertaking" means any undertaking over which the
successful tenderer can exert a dominant influence, whether
directly or indirectly, or any undertaking which can exert a
dominant influence on the successful tenderer or which, as the
successful tenderer, is subject to the dominant influence of another
undertaking as a result of ownership, financial participation or the
rules which govern it. A dominant influence on the part of the
undertaking is presumed when, directly or indirectly in relation to
another undertaking, it
-
holds a majority of the undertaking’s subscribed
capital,
-
controls a majority of the votes attached to the shares
issued by the undertaking, or
-
is entitled to appoint more than half of the
undertaking’s
administrative,
management
or
supervisory bodies;
"research and development" means all activities comprising
fundamental research, applied research and experimental
development, where the latter may include the realisation of
technological demonstrators, that is, devices that demonstrate the
performance of a new concept or a new technology in a relevant or
representative environment;
"restricted procedures" means procedures in which any economic
operator may ask to participate and whereby only those economic
operators invited by the contracting authority or entity may submit
a tender;
"sensitive equipment", "sensitive works" and "sensitive services"
means equipment, works and services for security purposes,
involving, requiring and, or containing classified information;
"service contracts" means contracts other than works or supply
contracts having as their object the provision of services. A
contract having as its object both products and services shall be
considered to be a "public service contract" if the value of the
services in question exceeds that of the products covered by the
contract. A contract having as its object services and including
activities mentioned in Division 45 of the CPV that are only
incidental to the principal object of the contract shall be considered
to be a public service contract;
"service provider" means a natural or legal person or public
entity or group of such persons and, or bodies which offers services
on the market;
"subcontract" means a public contract for pecuniary interest
concluded in writing between a successful tenderer for a contract
and one or more economic operators for the purposes of carrying
out that contract and having as its object works, supplies of
products or the performance of services;
"supplier" means a natural or legal person or public entity or
group of such persons and, or bodies which offers products on the
market;
''supply contract'' means a public contract other than a public
works contract having as its object the purchase, lease, rental or
hire purchase, with or without option to buy, of products. A public
contract having as its object the supply of products and which also
covers, as an incidental matter, siting and installation, shall be
considered to be a public supply contract;
"'tenderer'' means an economic operator who has submitted a
tender;
"Treaty" has the same meaning as is assigned to it by the
European Union Act;
''work'' means the outcome of building or civil engineering works
taken as a whole which is sufficient of itself to fulfil an economic
and technical function;
"works contract" means contracts having as their object either
the execution, or both the design and execution, of works related to
one of the activities mentioned in Division 45 of the CPV, or a
work, or the realisation, by whatever means, of a work
corresponding to the requirements specified by the contracting
authority;
"written" or "in writing" means any expression consisting of
words or figures which can be read, reproduced and subsequently
communicated. It may include information which is transmitted and
stored by electronic means.
Services referred to in regulations 3 and 17
Category
Subject
CPV Reference No
Hotel and restaurant services
From 55100000-1 to 55524000-9
and from 98340000-8 to
98341100-6
Supporting and auxiliary transport From 63000000-9 to 63734000-3
services
(except 63711200-8, 63712700-0,
63712710-3), from 63727000-1 to
63727200-3 and 98361000-1
Legal services
From 79100000-5 to 79140000-7
P e r s o n n e l p l a c e m e n t a n d s u p p l y From 79600000-0 to 79635000-4
s e r v i c e s ( e x c e p t e m p l o y m e n t (except 79611000-0, 79632000-3,
contracts)
79633000-0) and from 98500000-
8 to 98514000-9
Health and social services
79611000-0 and from 85000000-9
to 85323000-9 (except 85321000-
5, 85322000-2)
PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR
ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY
Category
Subject
CPV Reference No
No
Other services
Subject to Articles 30, 45, 46, 55 and 296 of the Treaty,
these regulations shall apply to contracts awarded in the fields of
defence and security for
(a) the supply of military equipment, including any parts,
components and, or sub-assemblies thereof;
(b) the supply of sensitive equipment, including any parts,
components and, or subassemblies thereof;
(c) works, supplies and services directly related to the
equipment referred to in paragraphs (a) and (b) for any
and all elements of its life cycle;
(d) works and services for specifically military purposes
or sensitive works and sensitive services.
Information to be included in the notices referred to in regulation 33
NOTICE OF PUBLICATION OF A PRIOR INFORMATION NOTICE ON A
BUYER PROFILE
1. Country of the contracting authority and, or entity
2. Name of the contracting authority and, or entity
3. Internet address of the ‘buyer profile’ (URL)
4. CPV nomenclature reference no(s)
PRIOR INFORMATION NOTICE
1. The name, address, fax number and e-mail address of the contracting
authority and, or entity and, if different, of the service from which additional
information may be obtained and, in the case of services and works contracts, of the
departments, e.g. the relevant governmental Internet site, from which information
can be obtained concerning the general regulatory framework for taxes,
environmental protection, employment protection and working conditions applicable
in the place where the contract is to be performed.
2. Where appropriate, indication whether the contract is restricted to sheltered
workshops, or whether its execution is restricted to the framework of protected job
programmes.
3. In the case of works contracts: the nature and extent of the works and the
place of execution; if the work is to be subdivided into several lots, the essential
characteristics of those lots by reference to the work; if available, an estimate of the
range of the cost of the proposed works; CPV nomenclature reference no(s).
In the case of supply contracts: the nature and quantity or value of the products to
be supplied, CPV nomenclature reference no(s).
In the case of services contracts: the total value of the proposed purchases in each
of the service categories, CPV nomenclature reference no(s).
4. Estimated date for initiating the award procedures in respect of the contract
or contracts, in the case of service contracts by category.
5. Where appropriate, indicate whether a framework agreement is involved.
6. Where appropriate, other information.
7. Date of dispatch of the notice or of dispatch of the notice of publication of
the prior information notice on the buyer profile.
CONTRACT NOTICES
Restricted procedures, negotiated procedures with publication of a contract notice
and competitive dialogues
1. Name, address, telephone and fax number, e-mail address of the contracting
authority and, or entity.
PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR
ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY
2. Where appropriate, indication whether the contract is restricted to sheltered
workshops, or whether its execution is restricted to the framework of protected job
3. (a) The award procedure chosen;
(b) Where appropriate, the reasons for use of the accelerated procedure (in
restricted and negotiated procedures);
(c) Where appropriate, indicate whether a framework agreement is
involved;
(d) Where appropriate, the holding of an electronic auction.
4. Form of the contract.
5. Place of execution and, or performance of the works, for delivery of
products or of the provision of services.
6. (a) Works contracts
nature and extent of the works and general nature of the work.
Indication in particular of options concerning supplementary
works, and, if known, the provisional timetable for recourse to
these options as well as the number of possible renewals, if any. If
the work or the contract is subdivided into several lots, the size of
the different lots; CPV nomenclature reference no(s),
information concerning the purpose of the work or the contract
where the latter also involves the drawing up of projects,
in the case of a framework agreement, indication also of the
planned duration of the framework agreement, the estimated total
value of the works for the entire duration of the framework
agreement and, as far as possible, the value and the frequency of
the contracts to be awarded.
(b) Supply contracts
nature of the products to be supplied, indicating in particular
whether tenders are requested with a view to purchase, lease
rental, hire or hire purchase or a combination of these, CPV
nomenclature reference no(s). Quantity of products to be
supplied, indicating in particular options concerning
supplementary purchases and, if known, the provisional timetable
for recourse to these options as well as the number of renewals, if
any; CPV nomenclature reference no(s),
in the case of regular or renewable contracts during the course of
a given period, indication also, if known, of the timetable for
subsequent contracts for intended purchases of supplies,
in the case of a framework agreement, indication also of the
planned duration of the framework agreement, the estimated total
value of the supplies for the entire duration of the framework
agreement and, as far as possible, the value and the frequency of
the contracts to be awarded.
(c) Service contracts
category and description of the service. CPV nomenclature
reference no(s). Quantity of services to be provided. Indication in
particular of options concerning supplementary purchases and, if
known, the provisional timetable for recourse to these options as
well as the number of renewals, if any. In the case of renewable
contracts over a given period, an estimate of the time frame, if
known, for subsequent contracts for intended purchases of
services.
In the case of a framework agreement, indication also of the
planned duration of the framework agreement, the estimated total
value of the services for the entire duration of the framework
agreement and, as far as possible, the value and the frequency of
the contracts to be awarded,
indication of whether the execution of the service is reserved by
law, regulation or administrative provision to a particular
profession,
reference to the law, regulation or administrative provision,
indication of whether legal persons should indicate the names and
professional qualifications of the staff to be responsible for the
execution of the service.
7. If the contracts are subdivided into lots, indication of the possibility for
economic operators of tendering for one, for several and, or for all the lots.
8. Admission or prohibition of variants.
9. Where applicable, indication of the percentage of the contract’s global value
which is required to be subcontracted to third parties through a tendering procedure
(regulation 22(4)).
10. Where applicable, selection criteria regarding the personal situation of
subcontractors that may lead to their exclusion, and required information proving
that they do not fall within the cases justifying exclusion. Information and any
necessary formalities for assessment of the minimum economic and technical
capacities required of the subcontractors. Minimum level(s) of capacities possibly
11. Time-limit for completion of works or supplies or services or duration of the
works or supply or services contract. Where possible, time-limit by which works will
begin or time-limit by which delivery of supplies or services will begin.
12. Where applicable, particular conditions to which the performance of the
contract is subject.
13. (a) The final date for the receipt of requests to participate.
(b) address to which they must be sent.
(c ) the language or languages in which they must be drawn up.
14. Where applicable, any deposits and guarantees required.
15. Main terms concerning financing and payment and, or references to the texts
in which these are contained.
16. Where applicable, the legal form to be taken by the grouping of economic
operators to which the contract is to be awarded.
17. Selection criteria regarding the personal situation of economic operators that
may lead to their exclusion, and information required proving that they do not fall
within the cases justifying exclusion. Selection criteria, information and any
necessary formalities for assessment of the minimum economic and technical
standards required of the economic operator. Minimum level(s) of standards possibly
PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR
ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY
18. In the case of framework agreements: the number and, where appropriate,
proposed maximum number of economic operators which will be members of it and
the duration of the framework agreement.
19. In the case of a competitive dialogue or a negotiated procedure with the
publication of a contract notice, indication, if appropriate, of recourse to a staged
procedure in order gradually to reduce the number of solutions to be discussed or
tenders to be negotiated.
20. In the case of a restricted procedure, a negotiated procedure or a competitive
dialogue, when recourse is had to the option of reducing the number of candidates to
be invited to submit tenders, to engage in dialogue or to negotiate: minimum and, if
appropriate, proposed maximum number of candidates and objective criteria to be
used to choose that number of candidates.
21. Criteria referred to in regulation 47 to be used for award of the contract
‘lowest price’ or ‘most economically advantageous tender’. Criteria representing the
most economically advantageous tender as well as their weighting or the criteria in
descending order of importance shall be mentioned where they do not appear in the
specifications or, in the event of a competitive dialogue, in the descriptive document.
22. Where appropriate, date(s) of publication of the prior information notice in
accordance with the technical specifications of publication indicated in Schedule VI
or statement that no such publication was made.
23. Date of dispatch of the notice.
CONTRACT AWARD NOTICE
1. Name and address of the contracting authority and, or entity.
2. Award procedure chosen. In the case of a negotiated procedure without prior
publication of a contract notice (regulation 29), justification.
3. Works contracts: nature and extent of the services.
Supply contracts: nature and quantity of products supplied, where appropriate, by
the supplier; CPV nomenclature reference no(s).
Service contracts: category and description of the service; CPV nomenclature
reference no(s); quantity of services purchased.
4. Date of contract award.
5. Contract award criteria.
6. Number of tenders received.
7. Name and address of the successful economic operators.
8.
9. Value of the tender (tenders) retained or the highest tender and lowest tender
taken into consideration for the contract award.
10. Where appropriate, proportion of contract to be subcontracted to third
parties and its value.
11. If appropriate, the reasons for the framework agreement lasting more than
seven years.
12. Date of publication of the tender notice in accordance with the technical
specifications for publication in Schedule IV.
13. Date of dispatch of this notice.
(1) A contract having as its object works, supplies or
services falling within the scope of these regulations and partly
within the scope of the Public Procurement Regulations, or the
Public Procurement of Entities Operating in the Water, Energy,
Transport and Postal Services Sectors Regulations, shall be
awarded in accordance with these regulations, provided that the
award of a single contract is justified for objective reasons.
(2) The award of a contract having as its object works, supplies
or services falling partly within the scope of these regulations, with
the other part not being subject to either these regulations, or to the
Public Procurement Regulations, or the Public Procurement of
Entities Operating in the Water, Energy, Transport and Postal
Services S ect ors Regul at ions, sh all no t be subj ect to t hese
regulations, provided that the award of a single contract is justified
for objective reasons.
(3) The decision to award a single contract may not, however,
be taken for the purpose of excluding contracts from the application
of these regulations or of the Public Procurement Regulations, or
the Public Procurement of Entities Operating in the Water, Energy,
Transport and Postal Services Sectors Regulations.
Information to be included in the subcontract notices
referred to in regulation 53
1. The name, address, fax number and e-mail address of the successful tenderer
and, if different, of the service from which additional information may be obtained.
2. (a) Place of execution/performance of the works, for delivery of products or
of the provision of services;
(b) nature, quantity and extent of the works and general nature of the work;
CPV nomenclature reference no(s);
(c) nature of the products to be supplied, indicating whether tenders are
requested with a view to purchase, lease rental, hire or hire purchase or
a combination of these, CPV nomenclature reference no(s);
(d) category and description of service; CPV nomenclature reference no(s).
3. Any time-limit for completion imposed.
4. Name and address of the body from which the specifications and the
additional documents may be requested.
5. (a) Time-limit for the receipt of applications to participate and, or the
receipt of tenders;
(b) address to which they must be sent;
(c) language(s) in which they must be written.
6. Any deposits or guarantees required.
7. Objective criteria which will be applied for selection of the subcontractors
related to their personal situation or the assessment of their bid.
8. Any other information.
9. Date of dispatch of the notice.
Contracting authorities or entities shall treat economic
operators equally and in a non-discriminatory manner and shall act
in a transparent way.
PART II
Rules on Contracts
Chapter 1
General Provisions
FEATURES CONCERNING PUBLICATION
1. Publication of notices
(a) The notices referred to in regulations 31 and 53 must be sent by the
contracting authorities and, or entities or successful tenderers to the
Publications Office of the European Union in the format referred to in
regulation 33. The prior information notices referred to in regulation
31(1)(a), published on a buyer profile as described in point 2, must also
use that format, as must the notice of such publication.
The notices referred to in regulations 31 and 53 must be published by
the Office for Publications Office of the European Union or by the
contracting authorities or entities in the case of a prior information
notice published on a buyer profile in accordance with regulation
31(1)(a).
In addition, contracting authorities or entities may publish this
information on the Internet on a ‘buyer profile’ as referred to in point 2;
PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR
ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY
(b) the Office for Publications Office of the European Union shall give the
contracting authority or entity the confirmation of publication referred
to in regulation 33(12).
2. Publication of supplementary information
The buyer profile may include prior information notices as referred to in
regulation 31(1)(a) 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 fax number, a postal address
and an e-mail address.
3. Format and procedures for sending notices electronically
The format and procedure for sending notices electronically are accessible at the
Internet address‘http://simap.europa.eu’.
(1) It shall not be lawful that candidates or tenderers
which, under the law of the Member State in which they are
established, are entitled to provide the relevant service, shall be
rejected solely on the ground that 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 and, 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.
(2) Groups of economic operators may submit tenders or put
themselves forward as candidates. In order to submit a tender or a
request to participate, these groups may not be required by the
contracting authorities or entities to assume a specific legal form;
however, the group selected may be required to do so when it has
been awarded the contract, to the extent that this change is
necessary for the satisfactory performance of the contract.
REGISTERS
Works contracts
The professional registers and corresponding declarations and certificates for each
Member State are
in Belgium the ‘Registre du Commerce’/‘Handelsregister’,
in Bulgaria, the ‘Търговски регистър’,
in the Czech Republic, the ‘obchodní rejstřík’,
in Denmark, the ‘Erhvervs- og Selskabsstyrelsen’,
in Germany, the ‘Handelsregister’ and the ‘Handwerksrolle’,
in Estonia, the ‘Registrite ja Infosüsteemide Keskus’,
in Ireland, the contractor may be requested to provide a certificate from
the Registrar of Companies or the Registrar of Friendly Societies or, if
he is not so certified, a certificate stating that the person concerned has
declared on oath that he is engaged in the profession in question in the
country in which he is established, in a specific place under a given
business name,
in Greece, the ‘Μητρώο Εργοληπτικών Επιχειρήσεων - MEΕΠ’ of the
Ministry for Environment, Town and Country Planning and Public
Works (Υ.ΠΕ.ΧΩ.Δ.Ε),
in Spain, the ‘Registro Oficial de Licitadores y Empresas Clasificadas
del Estado’,
in France, the ‘Registre du commerce et des sociétés’ and the
‘Répertoire des métiers’,
in Italy, the ‘Registro della Camera di commercio, industria, agricoltura
e artigianato’,
in Cyprus, the contractor may be requested to provide a certificate from
the ‘Council for the Registration and Audit of Civil Engineering and
Building Contractors (Συμβούλιο Εγγραφήςκαι Ελέγχου Εργοληπτών
Οικοδομικών και Τεχνικών Έργων)’ in accordance with the Registration
and Audit of Civil Engineering and Building Contractors Law,
in Latvia, the ‘Uzņēmumu reģistrs’,
in Lithuania, the ‘Juridinių asmenų registras’,
in Luxembourg, the ‘Registre aux firmes’ and the ‘Rôle de la Chambre
des métiers’,
in Hungary, the ‘Cégnyilvántartás’, the ‘egyéni vállalkozók jegyzői
nyilvántartása’,
in Malta, the contractor obtains his ‘numru ta’ reġistrazzjoni tat-Taxxa
tal-Valur Miżjud (VAT) u n-numru tal-liċenza ta’ kummerċ’, and, in the
case of a partnership or company, the relevant registration number as
issued by the Malta Financial Services Authority,
in the Netherlands, the ‘Handelsregister’,
in Austria, the ‘Firmenbuch’, the ‘Gewerberegister’,
the
‘Mitgliederverzeichnisse der Landeskammern’,
in Poland, the ‘Krajowy Rejestr Sądowy’,
in Portugal, the ‘Instituto da Construção e do Imobiliário’ (INCI),
in Romania, the ‘Registrul Comerţului’,
in Slovenia, the ‘Sodni register’ and the ‘obrtni register’,
in Slovakia, the ‘Obchodný register’,
in Finland, the ‘Kaupparekisteri’/‘Handelsregistret’,
in Sweden, the ‘aktiebolags-, handels- eller föreningsregistren’,
in the United Kingdom, the contractor may be requested to provide a
certificate from the Registrar of Companies or, if he is not so certified, a
certificate stating that the person concerned has declared on oath that he
is engaged in the profession in question in the country in which he is
established in a specific place under a given business name.
PART B
Supply contracts
The relevant professional and trade registers and declarations and certificates are
in Belgium the ‘Registre du Commerce’/‘Handelsregister’,
in Bulgaria, the ‘Търговски регистър’,
in the Czech Republic, the ‘obchodní rejstřík’,
in Denmark, the ‘Erhvervs- og Selskabsstyrelsen’,
in Germany, the ‘Handelsregister’ and the ‘Handwerksrolle’,
in Estonia, the ‘Registrite ja Infosüsteemide Keskus’,
in Greece, the ‘Βιοτεχνικό ή Εμπορικό ή Βιομηχανικό Επιμελητήριο’
and the ‘Μητρώο Κατασκευαστών Αμυντικού Υλικού’,
in Spain, the ‘Registro Mercantil’ or, in the case of non-registered
individuals, a certificate stating that the person concerned has declared
on oath that he is engaged in the profession in question,
in France, the ‘Registre du commerce et des sociétés’ and the
‘Répertoire des métiers’,
PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR
ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY
in Ireland, the supplier may be requested to provide a certificate from
the Registrar of Companies or the Registrar of Friendly Societies that he
is certified as incorporated or registered or, if he is not so certified, a
certificate stating that the person concerned has declared on oath that he
is engaged in the profession in question in the country in which he is
established, in a specific place under a given business name,
in Italy, the ‘Registro della Camera di commercio, industria, agricoltura
e artigianato’, and the ‘Registro delle commissioni provinciali per
l’artigianato’,
in Cyprus, the supplier may be requested to provide a certificate from
the ‘Registrar of Companies and Official Receiver’ (Έφορος Εταιρειών
και ΕπίσημοςΠαραλήπτης) or, if this is not the case, a certificate stating
that the person concerned has declared on oath that he is engaged in the
profession in question in the country in which he is established, in a
specific place and under a given business name,
in Latvia, the ‘Uzņēmumu reģistrs’,
in Lithuania, the ‘Juridinių asmenų registras’,
in Luxembourg, the ‘Registre aux firmes’ and the ‘Rôle de la Chambre
des métiers’,
in Hungary, the ‘Cégnyilvántartás’, the ‘egyéni vállalkozók jegyzői
nyilvántartása’,
in Malta: the supplier obtains his ‘numru ta’ reġistrazzjoni tat-Taxxa tal-
Valur Miżjud (VAT) u n-numru tal-liċenza ta’ kummerċ’, and, in the
case of a partnership or company, the relevant registration number as
issued by the Malta Financial Services Authority,
in the Netherlands, the ‘Handelsregister’,
in Austria, the ‘Firmenbuch’, the ‘Gewerberegister’,
the
‘Mitgliederverzeichnisse der Landeskammern’,
in Poland, the ‘Krajowy Rejestr Sądowy’,
in Portugal, the ‘Registro Nacional das Pessoas Colectivas’,
in Romania, the ‘Registrul Comerţului’,
in Slovenia, the ‘Sodni register’ and the ‘obrtni register’,
in Slovakia, the ‘Obchodný register’,
in Finland, the ‘Kaupparekisteri’/‘Handelsregistret’,
in Sweden, the ‘aktiebolags-, handels- eller föreningsregistren’,
in the United Kingdom, the supplier may be requested to provide a
certificate from the Registrar of Companies stating that he is certified as
incorporated or registered or, if he is not so certified, a certificate
stating that the person concerned has declared on oath that he is
engaged in the profession in a specific place under a given business
name.
PART C
Service contracts
The relevant professional and trade registers and declarations and certificates are
in Belgium, the ‘Registre du commerce/Handelsregister’ and the
‘Ordres professionels/Beroepsorden’,
in Bulgaria, the ‘Търговски регистър’,
in the Czech Republic, the ‘obchodní rejstřík’,
in Denmark, the ‘Erhvervs- og Selskabsstyrelsen’,
in Germany, the ‘Handelsregister’, the ‘Handwerksrolle’,
the
‘Vereinsregister’,
the
‘Partnerschaftsregister’
and
the
‘Mitgliedsverzeichnisse der Berufskammern der Länder’,
in Estonia, the ‘Registrite ja Infosüsteemide Keskus’,
in Ireland, the service provider may be requested to provide a certificate
from the Registrar of Companies or the Registrar of Friendly Societies
or, if he is not so certified, a certificate stating that the person concerned
has declared on oath that he is engaged in the profession in question in
the country in which he is established, in a specific place under a given
business name,
in Greece, the service provider may be asked to provide a declaration on
the exercise of the profession concerned made on oath before a notary;
in the cases provided for by existing national legislation, for the
provision of research services as mentioned in Schedule I, the
professional register ‘Μητρώο Μελετητών’ and the ‘Μητρώο Γραφείων
Μελετών’,
in Spain, the ‘Registro Oficial de Licitadores y Empresas Clasificadas
del Estado’,
in France, the ‘Registre du commerce et des sociétés’ and the
‘Répertoire des métiers’,
in Italy, the ‘Registro della Camera di commercio, industria, agricoltura
e artigianato’, the ‘Registro delle commissioni provinciali per
l’artigianato’ or the ‘Consiglio nazionale degli ordini professionali’,
in Cyprus, the service provider may be requested to provide a certificate
from the ‘Registrar of Companies and Official Receiver’ (Έφορος
Εταιρειών και Επίσημος Παραλήπτης) or, if this is not the case, a
certificate stating that the person concerned has declared on oath that he
is engaged in the profession in question in the country in which he is
established, in a specific place and under a given business name,
in Latvia, the ‘Uzņēmumu reģistrs’,
in Lithuania, the ‘Juridinių asmenų registras’,
in Luxembourg, the ‘Registre aux firmes’ and the ‘Rôle de la Chambre
des métiers’,
in Hungary, the ‘Cégnyilvántartás’, the ‘egyéni vállalkozók jegyzői
nyilvántartása’, some ‘szakmai kamarák nyilvántartása’ or, in the case
of some activities, a certificate stating that the person concerned is
authorised to be engaged in the commercial activity or profession in
question,
in Malta: the service provider can obtain his ‘numru ta’ reġistrazzjoni
tat-Taxxa tal-Valur Miżjud (VAT) u n-numru tal-liċenza ta’ kummerċ’,
and, in the case of a partnership or company, the relevant registration
number as issued by the Malta Financial Services Authority,
in the Netherlands, the ‘Handelsregister’,
in Austria, the ‘Firmenbuch’, the ‘Gewerberegister’,
the
‘Mitgliederverzeichnisse der Landeskammern’,
PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR
ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY
in Poland, the ‘Krajowy Rejestr Sądowy’,
in Portugal, the ‘Registro Nacional das Pessoas Colectivas’,
in Romania, the ‘Registrul Comerţului’,
in Slovenia, the ‘Sodni register’ and the ‘obrtni register’,
in Slovakia, the ‘Obchodný register’,
in Finland, the ‘Kaupparekisteri’/‘Handelsregistret’,
in Sweden, the ‘aktiebolags-, handels- eller föreningsregistren’,
in the United Kingdom, the service provider may be requested to
provide a certificate from the Registrar of Companies or, if he is not so
certified, a certificate stating that he has declared on oath that he is
engaged in the profession in question in a specific place under a given
business name.
Without prejudice to the provisions of these regulations, in
p a r t i c u l a r t h o s e c o n ce r n i n g t h e o b l i g a t i o n s r e l a t i n g t o t h e
advert ising of aw arded contracts and t o th e inform atio n to
candidates and tenderers as set out in regulations 33(3) and 36, and
in accordance with other laws and regulations, in particular
legislation regarding access to information, the contracting
authority or entity, subject to contractually acquired rights, shall
not disclose information forwarded to it by economic operators
which such operators have designated as confidential; such
information includes, in particular, technical or trade secrets and
the confidential aspects of tenders.
Requirements relating to devices for the electronic receipt of requests
to participate and tenders
Devices for the electronic receipt of requests for participation and tenders must at
least guarantee, through appropriate technical means and procedures, that
(a) electronic signatures relating to requests to participate and tenders
comply with national provisions adopted pursuant to Directive 1999/93/
EC;
(b) the exact time and date of the receipt of requests to participate and
tenders can be determined precisely;
(c) it may be reasonably ensured that, before the time-limits laid down, no-
one can have access to data transmitted under these requirements;
(d) if that access prohibition is infringed, it may be reasonably ensured that
the infringement is clearly detectable;
(e) only authorised persons may set or change the dates for opening data
received;
(f)
during the various stages of the contract award procedure, access to all
data submitted, or to part thereof, must be possible only through
simultaneous action by authorised persons;
(g) simultaneous action by authorised persons must give access to data
transmitted only after the prescribed date;
(h) data received and opened in accordance with these requirements must
remain accessible only to persons authorised to acquaint themselves
therewith.
Contracting authorities or entities may impose on
economic operators requirements aimed at protecting the classified
information they communicate throughout the tendering and
contracting procedure. They may also request these economic
operators to ensure compliance with such requirements by their
subcontractors.
Chapter II
Thresholds, central purchasing bodies and exclusion provisions
Section 1
Thresholds
(1) These regulations shall apply to contracts which have a
value, excluding value added tax (VAT), estimated to be no less
than the following thresholds
(a) EUR 134,000 for supply and service contracts;
(b) EUR 5,186,000 for works contracts.
(2) Where the estimated value does not exceed two thousand
and five hundred euro (€2,500), the equipment, stores, works or
services may be procured departmentally either after obtaining
quotations or direct from the open market at the discretion of the
Head of Department taking into consideration the amount involved,
the urgency attached to the procurement and restrictions of choice
and availability.
(3) Where the estimated value exceeds two thousand and five
hundred euro (€2,500) but does not exceed forty thousand euro
(€40,000), the equipment, stores, works or services may be
procured departmentally after a call for tenders, or after obtaining
quotations, or direct from the open market, taking into
consideration the amount involved, the urgency attached to the
procurement and restrictions of choice and availability, and shall be
approved by the Minister responsible for that department, or by
such member of the department as may be authorised by that
Minister.
(4) Where the estimated value exceeds forty thousand euro
(€40,000) but not one hundred and twenty-five thousand euro
(€125,000), the equipment, stores, works or services may be
procured after a departmental call for tenders or after publishing a
call for quotations in the Gazette. The tenders and quotations shall
be opened in public by three senior officers of the said department
and the prices quoted shall also be made public
Provided that the Minister may allow that variations and the
imposition or remission of penalties in respect of such contracts be
approved by the Minister charged with responsibility for that
department, who may delegate his authority in writing to the
Parliamentary Secretary, the Permanent Secretary or the Head of
Department.
(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 authority or entity. This calculation shall take
account of the estimated total amount, including any form of
option, any renewals of the contract and prizes or payments
provided to candidates or tenderers where applicable.
(2) This estimate must be valid at the moment at which the
contract notice is sent, as provided for in regulation 33(2), or, in
cases where such notice is not required, at the moment at which the
contracting authority or entity commences the contract award
procedure.
(3) No works project or proposed purchase of a certain quantity
of supplies and, or services may be partitioned to create essentially
identical separate partial contracts or otherwise subdivided to
prevent its coming within the scope of these regulations.
(4) With regard to works contracts, the calculation of the
estimated value shall take account of both the cost of the works and
the total estimated value of the supplies necessary for executing the
works and placed at the contractor’s disposal by the contracting
authorities or entities.
(5) Where a proposed work or purchase of services may result
in contracts being awarded at the same time in the form of separate
lots, account shall be taken of the total estimated value of all such
lots.
(6) Where the aggregate value of the lots is equal to or exceeds
the threshold laid down in regulation 9, these regulations shall
apply to the awarding of each lot
Provided that, the contracting authorities or entities may
waive such application in respect of lots the estimated value of
which, net of VAT, is less than EUR 80,000 for services or EUR
1,000,000 for works, provided that the aggregate value of those lots
does not exceed 20% of the aggregate value of the lots as a whole.
(7) Where a proposal for the acquisition of similar supplies
may result in contracts being awarded at the same time in the form
of separate lots, account shall be taken of the total estimated value
of all such lots when applying the provisions of regulation 9(1)(a)
and (b).
(8) Where the aggregate value of the lots is equal to or exceeds
the threshold laid down in regulation 9, these regulations shall
apply to the awarding of each lot
Provided that, the contracting authorities or entities may
waive such application in respect of lots the estimated value of
which, net of VAT, is less than EUR 80,000, provided that the
aggregate cost of those lots does not exceed 20% of the aggregate
value of the lots as a whole.
(9) With regard to supply contracts relating to the leasing, hire,
rental or hire-purchase of products, the value to be taken as a basis
for calculating the estimated contract value shall be as follows
(a) in the case of fixed-term contracts, where that term is
less than or equal to twelve months, the total estimated
value for the term of the contract or, where the term of
the contract is greater than twelve months, the total
value, including the estimated residual value;
(b) in the case of contracts without a fixed term or the
term of which cannot be defined, the monthly value
multiplied by 48.
(10) In the case of supply or service contracts which are regular
in nature or which are intended to be renewed within a given
period, the calculation of the estimated contract value shall be
based on the following
(a) either the total actual value of the successive contracts
of the same type awarded during the preceding twelve
months or financial year, adjusted, if possible, to take
account of the changes in quantity or value which
could occur in the course of the twelve months
following the initial contract; or
(b) the total estimated value of the successive contracts
awarded during the twelve months following the first
delivery, or during the financial year if that is longer
than twelve months
Provided that the choice of method used to calculate the
estimated value of a contract may not be made with the intention of
excluding it from the scope of these regulations.
(11) With regard to service contracts, the value to be taken as a
basis for calculating the estimated contract value shall, where
appropriate, be the following
(a) for the following services
(i)
insurance services: the premium payable and
other forms of remuneration;
(ii) design contracts: fees, commission payable and
other forms of remuneration;
(b) for service contracts which do not indicate a total
(i)
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;
(ii) in the case of contracts without a fixed term or
with a term greater than forty-eight months: the
monthly value multiplied by forty-eight.
(12) With regard to framework agreements, 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.
Section 2
Central purchasing bodies
(1) Contracting authorities or entities may purchase
works, supplies and or services from or through a central
purchasing body.
(2) Contracting authorities or entities which purchase works,
supplies and, or services from or through a central purchasing body
in the cases set out in the definition of "central purchasing body" in
regulation 2 shall be deemed to have complied with these
regulations insofar as
(a) the central purchasing body has complied with them,
or
(b) when the central purchasing body is not a contracting
authority or entity, the contract award rules applied by
it are compliant with all the provisions of these
regulations and the contracts awarded can be subject to
efficient remedies comparable to those provided for in
these regulations.
Section 3
Excluded contracts
None of the rules, procedures, programmes, agreements,
arrangements or contracts referred to in this section may be used
for the purpose of circumventing the provisions of these
regulations.
These regulations shall not apply to contracts governed by
(a) specific procedural rules pursuant to an international
agreement or arrangement concluded between one or
more Member States and one or more third countries;
(b) specific procedural rules pursuant to a concluded
international agreement or arrangement relating to the
stationing of troops and concerning the undertakings
of a Member State or a third country;
(c) specific procedural rules of an international
organisation purchasing for its purposes, or to
contracts which must be awarded by a Member State in
accordance with those rules.
These regulations shall not apply to the following
(a) contracts for which the application of these regulations
would oblige the competent authorities to supply
information the disclosure of which it considers
contrary to the essential interests of the security of the
country;
(b) contracts for the purposes of intelligence activities;
(c) contracts awarded in the framework of a cooperative
programme based on research and development,
conducted jointly by Malta and at least another
Member State for the development of a new product
and, where applicable, the later phases of all or part of
the life-cycle of this product. Upon the conclusion of
such a cooperative programme between Malta and
other Member States only, Member States shall
indicate to the Commission the share of research and
development expenditure relative to the overall cost of
the programme, the cost-sharing agreement as well as
the intended share of purchases per Member State, if
any;
(d) contracts awarded in a third country, including for
civil purchases, carried out when forces are deployed
outside the territory of the European Union where
operational needs require them to be concluded with
economic operators located in the area of operations;
(e) service contracts for the acquisition or rental, under
whatever financial arrangements, of land, existing
buildings or other immovable property, or concerning
rights in respect thereof;
(f)
contracts awarded by the Maltese government to
another government relating to
(i)
the supply of military equipment or sensitive
equipment,
(ii) works and services directly linked to such
equipment, or
(iii) works and services specifically for military
purposes, or sensitive works and sensitive
services;
(g) arbitration and conciliation services;
(h) financial services, with the exception of insurance
services;
(i)
employment contracts;
(j)
research and development services other than those
where the benefits accrue exclusively to the
contracting authority or entity for its use in the
conduct of its own affairs, on condition that the service
provided is wholly remunerated by the contracting
authority or entity.
Section 4
Special arrangements
The contracting authority or entity may reserve the right to
participate in contract award procedures to sheltered workshops or
provide for such contracts to be performed in the context of
sheltered employment programmes where most of the employees
concerned are handicapped persons who, by reason of the nature or
the seriousness of their disabilities, cannot carry on occupations
under normal conditions. The contract notice shall make reference
to this provision.
Chapter III
Arrangements for service contracts
Contracts which have as their object services covered by
regulation 3 that are listed in Schedule I shall be awarded in
accordance with regulations 19 to 55.
Contracts which have as their object services covered by
regulation 3 that are listed in Schedule II shall be subject solely to
regulations 19 and 31(3).
Contracts which have as their object services covered by
regulation 3 that are listed both in Schedule I and in Schedule II
shall be awarded in accordance with regulations 19 to 55 where the
value of the services listed in Schedule I is greater than the value of
the services listed in Schedule II. In other cases, contracts shall be
awarded in accordance with regulations 19 and 31(3).
Chapter IV
Specific rules governing contract documentation
(1) For the purposes of this regulation, the following
definitions shall apply
"common technical specification" means a technical
specification laid down in accordance with a procedure recognised
by Member States which has been published in the Official Journal
of the European Union;
"defence standard" means a technical specification the
observance of which is not compulsory and which is approved by a
standardisation body specialising in the production of technical
specifications for repeated or continuous application in the field of
defence;
"European technical approval" means a favourable technical
assessment of the fitness for use of a product for a specific purpose,
based on fulfilment of the essential requirements for building
works, by means of the inherent characteristics of the product and
the defined conditions of application and use. European technical
approvals are issued by an approval body designated for this
purpose by the Member State;
"standard" means a technical specification approved by a
recognised standardisation body for repeated or continuous
application, compliance with which is not compulsory, from one of
the following categories
(a) international standard: a standard adopted by an
international standards organisation and made
available to the general public,
(b) European standard: a standard adopted by a European
standardisation body and made available to the general
public,
(c) national standard: a standard adopted by a national
standards organisation and made available to the
general public;
"technical reference" means any product produced by European
standardisation bodies, other than official standards, according to
procedures adapted to developments in market needs;
"technical specifications" means
(a) in the case of works contracts: the totality of the
technical prescriptions contained in particular in the
tender documents, defining the characteristics required
of a material, product or supply, which permits a
material, a product or a supply to be described in a
manner such that it fulfils the use for which it is
intended by the contracting authority or entity. These
characteristics shall include levels of environmental
performance, design for all requirements (including
accessibility for people with disabilities) and
conformity assessment, performance, safety or
dimensions, including the procedures concerning
quality assurance, terminology, symbols, testing and
test methods, packaging, marking and labelling and
production processes and methods. They shall also
include rules relating to design and costing, the test,
inspection and acceptance conditions for works and
techniques or methods of construction and all other
technical conditions which the contracting authority or
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;
(b) in the case of supply or service contracts: a
specification in a document defining the required
characteristics of a product or service, such as quality
and environmental performance levels, design for all
requirements (including accessibility for people with
disabilities), and conformity assessment, performance,
use of the product, its 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 methods
and procedures, as well as conformity assessment
procedures;
(2) The technical specifications as defined in this regulation shall
be set out in the contract documentation (contract notices, contract
documents, descriptive documents or supporting documents).
(3) Technical specifications shall afford equal access for
tenderers and shall not have the effect of creating unjustified
obstacles to the opening up of procurement to competition.
(4) Without prejudice to either compulsory national technical
rules (including those related to product safety) or the technical
requirements to be met by Malta under international
standardisation agreements in order to guarantee the
interoperability required by those agreements, and provided they
are compatible with Community law, technical specifications shall
be drawn up
(a) either by reference to technical specifications defined
in this regulation and, in order of preference, to
-
national civil standards transposing European
standards,
-
European technical approvals,
-
common civil technical specifications,
-
national civil standards transposing international
standards,
-
other international civil standards,
-
other technical reference systems established by
the European standardisation bodies, or, where
these do not exist, other national civil standards,
national technical approvals or national
technical specifications relating to the design,
calculation and execution of the works and use
of the products,
-
civil technical specifications stemming from
industry and widely recognised by it, or,
-
the national "defence standards" defined in this
regulation and defence material specifications
similar to those standards;
and every reference shall be followed by the
expression "or equivalent"; or
(b) in terms of performance or functional requirements;
the latter may include environmental characteristics
Provided that such parameters must be sufficiently
precise to allow tenderers to determine the subject-
matter of the contract and to allow contracting
authorities or entities to award the contract; or
(c) in terms of performance or functional requirements as
mentioned in paragraph (b), with reference to the
specifications mentioned in paragraph (a) as a means
of presuming conformity with such performance or
functional requirements; or
(d) by referring to the specifications mentioned in
paragraph (a) for certain characteristics, and by
referring to the performance or functional
requirements mentioned in paragraph (b) for other
characteristics.
(5) Where a contracting authority or entity makes use of the
opti on of referri ng to t he speci ficat ions m ent ioned in sub-
regulation (4)(a), it can not reject a tender on the grounds that the
pro du cts an d servi ces ten dere d for do n ot com ply wi th th e
specifications to which it has referred, once the tenderer proves in
its tender to the satisfaction of the contracting authority or entity,
by whatever appropriate means, that the solutions which it proposes
satisfy in an equivalent manner the requirements defined by the
technical specifications.
For the purpose of this regulation an appropriate means
might be constituted by a technical dossier from the manufacturer
or a test report from a recognised body.
(6) Where a contracting authority or entity uses the option laid
down in sub-regulation (4) to prescribe performance-related or
functional requirements, it may not reject a tender for works,
products or services which comply with a national standard
transposing a European standard, with a European technical
approval, a common technical specification, an international
standard or a technical reference system established by a European
s t a n d a r d i s a t i o n b o d y, i f t h e s e s p e c i f i c a t i o n s a d d r e s s t h e
performance or functional requirements which it has laid down.
In its tender, the tenderer must prove to the satisfaction of
the contracting authority or entity and by any appropriate means
that the work, product or service in compliance with the standard
meets the performance or functional requirements of the
contracting authority or entity.
(7) Where contracting authorities or entities lay down
environmental characteristics in terms of performance or functional
requirements as referred to in sub-regulation (4)(b), they may use
the detailed specifications, or, if necessary, parts thereof, as defined
by European or (multi-) national eco-labels, or by any other eco-
label, provided that
(a) those specifications are appropriate as a means of
defining the characteristics of the supplies or services
that are the object of the contract,
(b) the requirements for the label are drawn up on the
basis of scientific information,
(c) the eco-labels are adopted using a procedure in which
all stakeholders, such as government bodies,
consumers,
manufacturers,
distributors
and
environmental organisations, can participate, and
(d) they are accessible to all interested parties.
Contracting authorities or entities may indicate that the
products and services bearing the eco-label are presumed to comply
with the t echnica l specifications l aid down i n the contract
documents; they must accept any other appropriate means of proof.
(8) "Recognised bodies", within the meaning of this regulation,
a r e t e s t an d c a l i b r a t i o n l a b o r a t o r i e s , a n d c e r t i f i c a t i o n a n d
i n s p e c t io n b od i e s w h i c h co m p l y w i t h a pp l i c a b le E u r op e a n
standards. Contracting authorities or entities shall accept
certificates from recognised bodies established in other Member
States.
(9) Unless justified by the subject-matter of the contract,
technical specifications shall not refer to a specific make or source,
or a particular process, or to trade marks, patents, types or a
specific origin or production with the effect of favouring or
eliminating certain unde rtaking s or certa in p roducts. 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-regulations (4) and (5) is not
possible; such reference shall be accompanied by the words "or
equivalent".
(1) Where the criterion for award is that of the most
economically advantageous tender, contracting authorities or
entities may authorise tenderers to submit variants.
(2) Contracting authorities or entities shall indicate in the
contract notice whether or not they authorise variants. Variants
shall not be authorised without this indication.
(3)
(a) Contracting authorities or entities authorising variants
shall state in the tender specifications the minimum
requirements to be met by the variants and any specific
requirements for their presentation.
(b) Only variants meeting the minimum requirements laid
down by the contracting authorities or entities shall be
taken into consideration.
(4) In procedures for awarding supply or service contracts,
contracting authorities or entities which have authorised variants
may not reject a variant on the sole ground that it would, if
successful, lead either to a service contract rather than a supply
contract, or to a supply contract rather than a service contract.
Contracting authorities or entities may lay down special
conditions relating to the performance of a contract, provided that
these are compatible with Community law and are indicated in the
contract documentation (contract notices, contract documents,
descriptive documents or supporting documents). These conditions
may, in particular, concern subcontracting or seek to ensure the
security of classified information and the security of supply
required by the contracting authority or entity, in accordance with
r e g ul a t io ns 2 2, 23 a nd 2 4 , o r ta ke en vi r on m e n ta l or s o c i a l
considerations into account.
(1) The successful tenderer shall be free to select its
subcontractors for all subcontracts that are not covered by the
requirement referred to in sub-regulations (3) and (4), and shall in
particular not be required to discrim inate against potential
subcontractors on grounds of nationality.
(2) The contracting authority or entity may ask or may be
required by a Member State to ask the tenderer
(a) to indicate in its tender any share of the contract it may
intend to subcontract to third parties and any proposed
subcontractor, as well as the subject-matter of the
subcontracts for which they are proposed; and, or,
(b) to indicate any change occurring at the level of
subcontractors during the execution of the contract.
(3) The contracting authority or entity may oblige or may be
required by a Member State to oblige the successful tenderer to
apply the provisions set out in Part III to all or certain subcontracts
which the successful tenderer intends to award to third parties.
(4) The contracting authority or entity may ask or be required
to ask the successful tenderer to subcontract to third parties a share
of the contract. The contracting authority or entity that imposes
such subcontracting shall express this minimal percentage in the
form of a range of values, comprising a minimum and maximum
percentage. The maximum percentage may not exceed 30% of the
value of the contract. Such a range shall be proportionate to the
object and value of the contract and the nature of the industry
sector involved, including the level of competition in that market
and the relevant technical capabilities of the industrial base.
(5) Any percentage of subcontracting falling within the range
of values indicated by the contracting authority or entity shall be
considered to fulfil the subcontracting requirement set out in sub-
regulation (4).
(6) Tenderers may propose to subcontract a share of the total
value which is above the range required by the contracting
authority or entity.
(7) The contracting authority or entity shall ask tenderers to
specify in their tender which part or parts of their offer they intend
to subcontract to fulfil the requirement referred to in sub-regulation
(1).
(8) The contracting authority or entity may ask or may be
required by a Member State to ask tenderers to specify which part
or parts of their offer they intend to subcontract beyond the
required percentage, as well as the subcontractors they have
already identified.
(9) The successful tenderer shall award subcontracts
corresponding to the percentage which the contracting authority or
entity requires it to subcontract in accordance with the provisions
of Part III.
(10) It shall be lawful for the contracting authority or entity to
reject the subcontractors selected by the tenderer at the stage of the
award procedure of the main contract or by the successful tenderer
during the performance of the contract; such rejection may only be
based on criteria applied for the selection of the tenderers for the
main contract. However if the contracting authority or entity rejects
a subcontractor, it must produce a written justification to the
tenderer or the successful tenderer, setting out why it considers that
the subcontractor does not meet the criteria.
(11) Requirements referred to in sub-regulations (2) to (5) shall
be indicated in the contract notices.
(12) Sub-regulations (1) to (5) shall be without prejudice to the
question of the principal economic operator’s liability.
When contracts involve, require and, or contain classified
information, the contracting authority or entity shall specify in the
contract documentation (contract notices, contract documents,
descriptive documents or supporting documents) the measures and
requirements necessary to ensure the security of such information
at the requisite level. The contracting authority or entity may
require that the tender contain, inter alia, the following particulars
(a) a commitment from the tenderer and the
subcontractors already identified to appropriately
safeguard the confidentiality of all classified
information in their possession or coming to their
notice throughout the duration of the contract and after
termination or conclusion of the contract, in
accordance with the relevant laws, regulations and
administrative provisions;
(b) a commitment from the tenderer to obtain the
commitment provided in paragraph (a) from other
subcontractors to which it will subcontract during the
execution of the contract;
(c) sufficient information on subcontractors already
identified to enable the contracting authority or entity
to determine that each of them possesses the
capabilities required to appropriately safeguard the
confidentiality of the classified information to which
they have access or which they are required to produce
when carrying out their subcontracting activities;
(d) a commitment from the tenderer to provide the
information required under paragraph (c) on any new
subcontractor before awarding a subcontract
Provided that measures and requirements referred to in
paragraph (b) have to comply with national provisions on security
clearance.
(1) The contracting authority or entity shall specify in the
contract documentation (contract notices, contract documents,
descriptive documents or supporting documents) its security of
supply requirements. The contracting authority or entity may
require that the tender contain, inter alia, the following particulars
(a) certification or documentation demonstrating to the
satisfaction of the contracting authority or entity that
the tenderer will be able to honour its obligations
regarding the export, transfer and transit of goods
associated with the contract, including any supporting
documentation received from the Member State(s)
concerned;
(b) the indication of any restriction on the contracting
authority or entity regarding disclosure, transfer or use
of the products and services or any result of those
products and services, which would result from export
control or security arrangements;
(c) certification or documentation demonstrating that the
organisation and location of the tenderer’s supply
chain will allow it to comply with the requirements of
the contracting authority or entity concerning security
of supply set out in the contract documents, and a
commitment to ensure that possible changes in its
supply chain during the execution of the contract will
not affect adversely compliance with these
requirements;
(d) a commitment from the tenderer to establish and, or
maintain the capacity required to meet additional
needs required by the contracting authority or entity as
a result of a crisis, according to terms and conditions
to be agreed;
(e) any supporting documentation received from the
tenderer’s national authorities regarding the fulfilment
of additional needs required by the contracting
authority or entity as a result of a crisis;
(f)
a commitment from the tenderer to carry out the
maintenance, modernisation or adaptation of the
supplies covered by the contract;
(g) a commitment from the tenderer to inform the
contracting authority or entity in due time of any
change in its organisation, supply chain or industrial
strategy that may affect its obligations to that authority
or entity;
(h) a commitment from the tenderer to provide the
contracting authority or entity, according to terms and
conditions to be agreed, with all specific means
necessary for the production of spare parts,
components, assemblies and special testing equipment,
including technical drawings, licenses and instructions
for use, in the event that it is no longer able to provide
these supplies.
(2) A tenderer may not be required to obtain a commitment
from a Member State that would prejudice that Member State’s
freedom to apply, in accordance with relevant international or
Community law, its national export, transfer or transit licensing
criteria in the circumstances prevailing at the time of such a
licensing decision.
(1) The contracting authority or entity may state in the
contract documents, or be obliged by the Director to do so, the
body or bodies from which a candidate or tenderer may obtain the
appropriate information on the obligations relating to taxes, to
environmental protection, to the employment protection provisions
and to the working conditions which are in force in Malta, or the
region or locality in which the services are to be provided and
which shall be applicable to the services provided during the
performance of the contract.
(2) A contracting authority which supplies the information
referred to in sub-regulation (1) shall request the tenderers or
candidates in the contract award procedure to indicate that they
h a v e t a k e n a c c o u n t , w h e n d r a w i n g u p t h e i r t e n d e r, o f t h e
obligations relating to employment protection provisions and the
working conditions which are in force in the place where the
service is to be provided.
(3) Sub-regulation (1) shall be without prejudice to the
application of the provisions of regulation 50 concerning the
examination of abnormally low tenders.
Chapter V
Procedures
(1) In awarding contracts, contracting authorities or
entities shall apply the national procedures adjusted for the
purposes of these regulations.
(2) It shall be lawful for contracting authorities or entities for
the purpose of awarding the contract to apply the restricted
procedure or the negotiated procedure with publication of a
contract notice.
(3) Under the circumstances referred to in regulation 28,
contracting authorities or entities may award their contracts by
means of a competitive dialogue.
(4) In the specific cases and circumstances referred to
expressly in regulation 29, the contracting authorities or entities
may apply a negotiated procedure without publication of a contract
notice.
(1) In negotiated procedures with publication of a contract
notice, contracting authorities or entities shall negotiate with
tenderers the tenders submitted by them in order to adapt them to
the requirements they have set in the contract notice, the contract
documents and supporting documents, if any, and to seek out the
best tender in accordance with regulation 48.
(2) During the negotiations, contracting authorities or entities
shall ensure the equal treatment of all tenderers. In particular, they
shall not provide information in a discriminatory manner which
may give some tenderers an advantage over others.
(3) Contracting authorities or entities may provide for the
negotiated procedure to take place in successive stages in order to
reduce the number of tenders to be negotiated by applying the
award criteria set out in the contract notice or the contract
documents. The contract notice or the contract documents shall
indicate whether or not this option has been used.
(1) In case of particularly complex contracts, where
contracting authorities consider that the use of the open or
restricted procedure will not allow the award of the contract, the
contracting authorities may make use of the competitive dialogue
in accordance with this regulation
Provided that a public contract shall be awarded on the sole
basis of the award criterion for the most economically
advantageous tender.
(2) Contracting authorities or entities shall publish a contract
notice setting out their needs and requirements, which they shall
define in that notice and, or in a descriptive document.
(3) Contracting authorities or entities shall open, with the
candidates selected in accordance with the relevant provisions of
regulation 39 to 47, 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 contract with the chosen candidates
during this dialogue.
(4) During the dialogue mentioned in the sub-regulation (3),
contracting authorities or entities shall ensure equality of treatment
a m o n g a l l t e n d e r e r s . I n p a r t i c u l a r, t h e y s h a l l n o t p r o v i d e
information in a discriminatory manner which may give some
tenderers an advantage over others.
(5) Contracting authorities or entities may not reveal to the
other partici pant s so lut ions pro posed o r o ther con fid ential
information communicated by a candidate participating in the
dialogue, without the agreement of that candidate.
(6) Contracting authorities or entities may provide for the
procedure to 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 set out in the contract notice or the
descriptive document. The contract notice or the descriptive
document shall indicate that recourse may be had to this option.
(7) The contracting authority or entity shall continue such
dialogue until it can identify the solution or solutions, if necessary
after comparing them, which are likely to meet its needs.
(8) Having declared that the dialogue is concluded and having
so informed the participants, contracting authorities or entities
shall ask the participants to submit their final tenders on the basis
of the solution or solutions presented and specified during the
dialogue. These tenders shall contain all the elements required and
necessary for the performance of the project.
(9) The tenders may be clarified, specified and fine-tuned at the
request of the contracting authority or entity. However, such
clarification, specification, fine-tuning or additional information
may not involve changes to the basic features of the tender or the
call for tender, variations in which are likely to distort competition
or have a discriminatory effect.
(10) Contracting authorities or entities shall assess the tenders
received on the basis of the award criteria laid down in the contract
notice or the descriptive document and shall choose the most
economically advantageous tender in accordance with regulation
(11) At the request of the contracting authority or entity, the
tenderer identified as having submitted the most economically
advantageous tender may be asked to clarify aspects of the tender
or confirm commitments contained in the tender, provided this does
not have the effect of modifying substantial aspects of the tender or
of the call for tenders and does not risk distorting competition or
causing discrimination.
(12) The contracting authorities or entities may specify prices or
payments to the participants in the dialogue.
29. Contracting authorities or entities may award contracts by
a negotiated procedure without prior publication of a contract
notice and shall justify the use of this procedure in the contract
award notice as required in regulation 31(3) in the following cases
(a) for works contracts, supply contracts and service
contracts
(i)
when no tenders or no suitable tenders or no
applications have been submitted in response to
a restricted procedure, a negotiated procedure
with prior publication of a contract notice or a
competitive dialogue, provided that the initial
conditions of the contract are not substantially
altered and on condition that a report is sent to
the Commission, if it so requests;
(ii) in the event of irregular tenders or the
submission of tenders which are unacceptable
under national provisions compatible with
regulations 6, 20, 22 to 25 and Chapter VII of
Part II, in response to a restricted procedure, a
negotiated procedure with publication or a
competitive dialogue, insofar as
1. the original terms of the contract are not
substantially altered, and
2. they include in the negotiated procedure of
all, and only, the tenderers which satisfy
the criteria of regulations 40 to 47 and
which, during the prior restricted
procedure or competitive dialogue, had
submitted tenders in accordance with the
formal requirements of the tendering
procedure;
(iii) when the periods laid down for the restricted
procedure and negotiated procedure with
publication of a contract notice, including the
shortened periods referred to in regulation 34(9),
are incompatible with the urgency resulting from
a crisis. This may apply for instance in the cases
referred to in regulation 24(1)(d);
(iv) insofar as is strictly necessary when, for reasons
of extreme urgency brought about by events
unforeseeable by the contracting authorities or
entities in question, the time-limit for the
PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR
ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY
restricted procedure or the negotiated procedure
with publication of a contract notice, including
the shortened time-limits as referred to in
regulation 34(7), cannot be complied with. The
circumstances invoked to justify extreme
urgency must not in any event be attributable to
the contracting authority or entity;
(v)
when, for technical reasons or reasons connected
with the protection of exclusive rights, the
contract may be awarded only to a particular
economic operator;
(b) for service contracts and supply contracts
(i)
for research and development services other than
those referred to in regulation 14;
(ii) for products manufactured purely for the
purpose of research and development, with the
exception of quantity production to establish
commercial viability or recover research and
development costs;
(c) for supply contracts
(i)
for additional deliveries by the original supplier
which are intended either as a partial
replacement of normal supplies or installations
or as the extension of existing supplies or
installations where a change of supplier would
oblige the contracting authority or entity to
acquire material having different technical
characteristics
which
would
result
in
incompatibility or disproportionate technical
difficulties in operation and maintenance
Provided that the length of such contracts, as
well as that of recurrent contracts, may not
exceed five years, except in exceptional
circumstances determined by taking into account
the expected service life of any delivered items,
installations or systems, and the technical
difficulties which a change of supplier may
cause;
(ii) for supplies quoted and purchased on a
commodity market;
(iii) for the purchase of supplies on particularly
advantageous terms, from either a supplier
which is definitively winding up its business
activities, or the receivers or liquidators of a
bankruptcy, an arrangement with creditors, or a
similar procedure under national laws or
regulations;
(d) for works contracts and service contracts
(i)
for additional works or services not included in
the project initially considered or in the original
contract but which have, through unforeseen
PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR
ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY
circumstances, become necessary for the
performance of the works or services described
therein, on condition that the award is made to
the economic operator performing such works or
services
1. when such additional works or services
cannot be technically or economically
separated from the original contract
without major inconvenience to the
contracting authorities or entities, or
2. when such works or services, although
separable from the performance of the
original contract, are strictly necessary for
its completion.
However, the aggregate value of contracts
awarded for additional works or services may
not exceed 50% of the amount of the original
contract;
(ii) for new works or services consisting in the
repetition of similar works or services entrusted
to the economic operator to which the same
contracting authorities or entities awarded an
original contract, provided that such works or
services are in conformity with a basic project
for which the original contract was awarded
according to the restricted procedure, the
negotiated procedure with publication of a
contract notice or a competitive dialogue
Provided that as soon as the first project is put
up for tender, the possible use of this procedure
shall be disclosed, and the total estimated cost of
subsequent works or services shall be taken into
consideration by the contracting authorities or
entities when they apply regulation 9
Provided further that this procedure may be used
only during the five years following the
conclusion of the original contract, except in
exceptional circumstances determined by taking
into account the expected service life of any
delivered items, installations or systems, and the
technical difficulties which a change of supplier
may cause;
(e) for contracts related to the provision of air and
maritime transport services for the armed forces or
security forces of Malta deployed or to be deployed
abroad, when the contracting authority or entity has to
procure such services from economic operators that
guarantee the validity of their tenders only for such
short periods that the time-limit for the restricted
procedure or the negotiated procedure with publication
of a contract notice, including the shortened time-
limits as referred to in regulation 34(9), cannot be
complied with.
30. (1) Contracting authorities or entities may conclude
framework agreements.
(2) For the purpose of concluding a framework agreement,
co ntract ing aut hori ties or entit ies sh al l follow the rules of
procedure referred to herein for all phases up to the award of
contracts based on that framework agreement. The parties to the
framework agreement shall be chosen by applying the award
criteria set in accordance with regulation 48.
(3) Contracts based on a framework agreement shall be
awarded in accordance with the procedures laid down in sub-
regulations (8) and (9). Those procedures may be applied only
between the contracting authorities or entities and the economic
operators originally party to the framework agreement.
(4) When awarding contracts based on a framework agreement,
the parties may under no circumstances make substantial
amendments to the terms laid down in that framework agreement,
in particular in the case referred to in sub-regulation (8).
(5) The term of a framework agreement may not exceed seven
years, except in exceptional circumstances determined by taking
into account the expected service life of any delivered items,
installations or systems, and the technical difficulties which a
change of supplier may cause.
(6) For the exceptional circumstances mentioned in sub-
regulation (5), the contracting authorities or entities shall provide
an appropriate justification for those circumstances in the notice
referred to in regulation 31(3).
(7) Contracting authorities or entities may not use framework
agreements improperly or in such a way as to prevent, restrict or
distort competition.
(8) Where a framework agreement is concluded with a single
economic operator, contracts based on that agreement shall be
awarded within the limits of the terms laid down in the framework
agreement.
For the award of those contracts, contracting authorities or
entities may consult the operator party to the framework agreement
in writing, requesting it to supplement its tender as necessary.
(9) Where a framework agreement is concluded with several
economic operators, the latter must be at least three in number,
insofar as there is a sufficient number of economic operators that
satisfy the selection criteria and, or of admissible tenders that meet
the award criteria.
(10) Contracts based on framework agreements concluded with
several economic operators may be awarded either
(a) by application of the terms laid down in the framework
agreement without reopening competition, or
(b) where not all the terms are laid down in the framework
agreement, when the parties are again in competition
on the basis of the same and, if necessary, more
precisely formulated terms, and, where appropriate,
other terms referred to in the contract documents of the
framework agreement, in accordance with the
following procedure
(i)
for every contract to be awarded, contracting
authorities or entities shall consult in writing the
economic operators capable of performing the
contract;
(ii) contracting authorities or entities shall fix a
time-limit which is sufficiently long to allow
tenders for each specific contract to be
submitted, taking into account factors such as
the complexity of the subject-matter of the
contract and the time needed to submit tenders;
(iii) tenders shall be submitted in writing and their
content remain confidential until the stipulated
time-limit for reply has expired;
(iv) contracting authorities or entities shall award
each contract to the tenderer which has
submitted the best tender on the basis of the
award criteria set out in the contract documents
of the framework agreement.
Chapter VI
Rules on advertising and transparency
Section 1
Publication of notices
31. (1) Contracting authorities or entities may make known,
by means of a prior information notice published by the
Commission or by themselves on their ‘buyer profile’, as described
in point 2 of Schedule V
(a) where supplies are concerned, the estimated total value
of the contracts or the framework agreements by
product area which they intend to award over the
following twelve months.
The product area shall be established by the
contracting authorities or entities by reference to the
CPV nomenclature;
(b) where services are concerned, the estimated total value
of the contracts or framework agreements in each of
the categories of services which they intend to award
over the following twelve months;
(c) where
works
are
concerned,
the
essential
characteristics of the contracts or framework
agreements which they intend to award.
(2) The notices referred to in sub-regulation (1) shall be sent to
the Commission or published on the buyer profile at the earliest
opportunity after the decision approving the project for which the
contracting authorities or entities intend to award contracts or
framework agreements.
(3) Contracting authorities or entities that publish a prior
information notice on their buyer profiles shall send the
Commission, electronically, a notice of publication of the prior
information notice on a buyer profile, in accordance with the
format and detailed procedures for sending notices set out in point
3 of Schedule V.
(4) Publication of the notices referred to in sub-regulation (1)
shall be compulsory only where the contracting authorities or
entities take the option of shortening the time-limits for the receipt
of tenders as laid down in regulation 34(4).
(5) Sub-regulations (1) to (4) shall not apply to negotiated
procedures without the prior publication of a contract notice.
(6) Contracting authorities or entities which wish to award a
contract or a framework agreement by restricted procedure,
negotiated procedure with the publication of a contract notice or a
competitive dialogue shall make known their intention by means of
a contract notice.
(7) Contracting authorities or entities which have awarded a
contract or concluded a framework agreement shall send a notice of
the results of the award procedure no later than forty-eight days
after the award of the contract or the conclusion of the framework
agreement.
(8) In the case of framework agreements concluded in
accordance with regulation 30, the contracting authorities or
entities shall not be bound to send a notice of the results of the
award procedure for each contract based on that agreement.
(9) Certain information on the contract award or the conclusion
of the framework agreement may be withheld from publication
where release of such information would impede law enforcement
or otherwise be contrary to the public interest, in particular defence
and, or security interests, would harm the legitimate commercial
interests of economic operators, public or private, or might
prejudice fair competition between them.
32. Contracting authorities or entities may publish, in
accordance with regulation 33, notices concerning contracts which
are not subject to the publication requirement laid down in these
regulations.
33. (1) Notices shall include the information referred to in
Schedule III and, where appropriate, any other information deemed
useful by the contracting authority or entity in the format of the
standard forms adopted by the Commission in accordance with the
advisory procedure referred to in Article 67(2) of Directive 2009/
81/EC of the European Parliament and of the Council.
(2) Notices sent by contracting authorities or entities to the
Commission shall be sent either by electronic means in accordance
with the format and procedures for transmission set out in point 3
of Schedule V, or by other means. In the event of recourse to the
accelerated procedure set out in regulation 34(9), notices must be
sent either by fax or by electronic means, in accordance with the
format and procedures for transmission set out in point 3 of
Schedule V.
(3) Notices shall be published in accordance with the technical
characteristics for publication set out in point 1(a) and (b) of
Schedule V.
(4) Notices drawn up and transmitted by electronic means in
accordance with the format and procedures for transmission set out
in point 3 of Schedule V shall be published no later than five days
after they are sent.
(5) Notices which are not transmitted by electronic means in
accordance with the format and procedures for transmission set out
in point 3 of Schedule V shall be published no later than twelve
days after they are sent, or, in the case of the accelerated procedure
referred to in regulation 34(9), no later than five days after they are
sent.
(6) Contract notices shall be published in full in the English
language which shall constitute the sole authentic text. A summary
of the important elements of each notice shall be published in the
other official languages.
(7) Notices and their contents may not be published by the
contracting authorities or entities on a buyer profile before the date
on which they are sent to the Commission.
(8) The notices published shall not contain information other
than that contained in the notices sent to the Commission or
published on a buyer profile in accordance with regulation
31(1)(a), but shall mention the date of dispatch of the notice to the
Commission or its publication on a buyer profile.
(9) Prior information notices may not be published on a buyer
profile before the dispatch to the Commission of the notice of their
publication in that form. The notice shall mention the date of that
dispatch.
(10) The content of notices not sent by electronic means in
accordance with the format and procedures for transmission set out
in point 3 of Schedule V shall be limited to approximately 650
words.
(11) Contracting authorities or entities must be able to supply
proof of the dates on which notices are dispatched.
(12) The Commission shall give the contracting authority or
entity confirmation of the publication of the information sent,
mentioning the date of such publication. Such confirmation shall
constitute proof of publication.
Section 2
Time limits
34. (1) When fixing the time-limits for receipt of requests to
participate and tenders, contracting authorities or 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 by this regulation.
(2) In restricted procedures, negotiated procedures with the
publication of a contract notice and use of a competitive dialogue,
the minimum time-limit for receipt of requests to participate shall
be thirty-seven days from the date on which the contract notice is
sent.
(3) In the case of restricted procedures, the minimum time-
limit for the receipt of tenders shall be forty days from the date on
which the invitation is sent.
(4) When contracting authorities or entities have published a
prior information notice, the minimum time-limit for the receipt of
tenders under sub-regulation (3) may, as a general rule, be
shortened to thirty-six days, but under no circumstances to less than
twenty-two days.
The time-limit shall run from the date on which the
invitation to tender was sent.
(5) The shortened time-limits referred to in sub-regulation (1)
shall be permitted, provided that the prior information notice has
included all the information required for the contract notice set out
in Schedule III, insofar as that information is available at the time
the notice is published and that the prior information notice was
sent for publication between fifty-two days and twelve months
before the date on which the contract notice was sent.
(6) Where notices are drawn up and transmitted by electronic
means in accordance with the format and procedure for sending
notices set out in point 3 of Schedule V, the time-limit for the
receipt of the requests to participate referred to in sub-regulation
(2) may be shortened by seven days.
(7) The time-limits for receipt of tenders referred to in sub-
regulation (3) may be reduced by five days where the contracting
authority or entity offers unrestricted and full direct access by
electronic means to the contract documents and any supporting
documents from the date of publication of the notice in accordance
with Schedule V, specifying in the text of the notice the internet
address at which this documentation is accessible.
This reduction may be added to that referred to in sub-
regulation (6).
(8) If, for whatever reason, the contract documents and
supporting documents or additional information, although
requested in good time, are not supplied within the time-limits set
out in regulation 35, or where tenders can be made only after a visit
to the site or after on-the-spot inspection of the documents
supporting the contract documents, the time-limits for the receipt of
tenders shall be extended so that all economic operators concerned
may be aware of all the information needed to produce tenders.
(9) In the case of restricted procedures and negotiated
procedures with publication of a contract notice, where urgency
renders impracticable the minimum time-limits laid down in this
regulation, contracting authorities or entities may fix
(a) a time-limit for receipt of requests to participate which
may not be less than fiften days from the date on
which the contract notice is dispatched, or less than ten
days if the notice was sent by electronic means, in
accordance with the format and procedure for sending
notices set out in point 3 of Schedule V; and
(b) in the case of restricted procedures, a time-limit for
receipt of tenders which shall not be less than ten days
from the date of the invitation to tender.
Section 3
Information content and means of transmission
35. (1) In restricted procedures, negotiated procedures with
the publication of a contract notice and competitive dialogues, the
contracting authorities or entities shall simultaneously and in
writing invite the selected candidates to submit their tenders or to
negotiate, or, in the case of a competitive dialogue, to take part in
the dialogue.
(2)
The invitation to the candidates shall include either
(a) a copy of the contract documents or of the descriptive
document and any supporting documents, or
(b) a reference to accessing the documents referred to in
paragraph (a) when they are made directly available by
electronic means in accordance with regulation 34(7).
(3) Where the contract documents, the descriptive document
and, or any supporting documents are held by an entity other than
the contracting authority or entity responsible for the award
procedure, the invitation shall state the address from which that
documentation may be requested and, if appropriate, the closing
date for requesting such documents, the sum payable for obtaining
them and any payment procedures. The competent department shall
send that documentation to the economic operator without delay
upon receipt of a request.
(4) The additional information on the contract documents, the
descriptive document and, or the supporting documents shall be
sent by the contracting authority or entity or the competent
department not less than six days before the deadline fixed for the
receipt of tenders, provided that it is requested in good time. In the
event of a restricted or an accelerated procedure, that period shall
be four days.
(5) In addition to the particulars provided for in sub-
regulations (2), (3) and (4), the invitation shall contain at least
(a) a reference to the contract notice published;
(b) the deadline for receipt of tenders, the address to
which the tenders must be sent and the language or
languages in which the tenders must be drawn up. In
the case of a competitive dialogue, this information
shall not be contained in the invitation to take part in
the dialogue, but in the invitation to submit a tender;
(c) in the case of a competitive dialogue, the date and the
address set for the start of the consultation stage and
the language or languages used;
(d) an indication of any documents to be annexed, either
to support the verifiable statements provided by the
candidate in accordance with regulation 39, or to
supplement the information provided for in that
regulation under the same conditions as those laid
down in regulations 42 and 43;
(e) the relative weighting of criteria for the award of the
contract or, where appropriate, the descending order of
importance of the criteria used to define the
economically most advantageous tender, if they are not
given in the contract notice, the contract documents or
the descriptive document.
36. (1) The contracting authorities or entities shall, at the
earliest opportunity, inform candidates and tenderers of decisions
reached concerning the award of a contract or the conclusion of a
framework agreement, including the grounds for any decision not
to award a contract or conclude a framework agreement for which
there has been competitive tendering or to recommence the
procedure; that information shall be given in writing upon request
to the contracting authorities or entities.
(2) At the request of the party concerned, the contracting
authority or entity shall, subject to sub-regulation (3), at the earliest
opportunity and at the latest within fifteen days of receipt of the
written request for information, inform the parties as follows
(a) any unsuccessful candidate of the reasons for the
rejection of the application;
(b) any unsuccessful tenderer of the reasons for the
rejection of the tender, including, in particular, for the
cases referred to in regulation 19(4) and (5), the
reasons for its decision of non-equivalence or its
decision that the works, supplies or services do not
meet the performance or functional requirements, and
in the cases referred to in regulations 23 and 24, the
reasons for its decision of non-conformity with the
requirements of security of information and security of
supply;
(c) any tenderer which has made an admissible tender that
has been rejected, 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.
(3) Contracting authorities or entities may decide to withhold
certain information on the contract award or the conclusion of the
framework agreements referred to in sub-regulation (1) where
release of such information would impede law enforcement or
otherwise be contrary to the public interest, in particular defence
and, or security interests, would prejudice the legitimate
commercial interests of economic operators, whether public or
private, or might prejudice fair competition between them.
Section 4
Communication
37. (1) All communication and information exchange referred
to in this Title may be made by post, fax, electronic means in
accordance with sub-regulations (4) and (5), telephone in the cases
and circumstances referred to in sub-regulation (6), or a
combination of those means, according to the choice of the
contracting authority or entity.
(2) The means of communication chosen must be generally
available and thus not restrict the access of economic operators to
the tendering procedure.
(3) Communication and the exchange and storage of
information shall be carried out in such a way as to ensure that the
integrity of data and the confidentiality of requests to participate
and tenders are preserved, and that the contracting authorities or
entities examine the content of requests to participate and tenders
only after the time-limit set for submitting them has expired.
(4) The tools to be used for communicating by electronic
means, as well as their technical characteristics, must be non-
d i s c r i m i n a t o r y, g e n e r a l l y a v a i l a b l e a n d c o m p a t i b l e w i t h
information and communication technology products in general
use.
(5) The following rules shall apply to devices for the electronic
transmission and receipt of tenders and devices for the electronic
receipt of requests to participate
(a) information regarding the specifications necessary for
the electronic submission of tenders and requests to
participate, including encryption, shall be available to
interested parties. Moreover, devices for the electronic
receipt of tenders and requests to participate shall
conform to the requirements of Schedule VII;
(b) contracting authorities or entities may, in compliance
with Article 5 of Directive 1999/93/EC, require
electronic tenders to be accompanied by an advanced
electronic signature, in conformity with paragraph 1
thereof;
(c) contracting authorities or entities may introduce or
maintain voluntary arrangements for accreditation
intended to improve the level of the certification
service provided for such devices;
(d) tenderers or candidates shall undertake to submit,
before expiry of the time-limit laid down for
submission of tenders or requests to participate, the
documents, certificates and declarations referred to in
regulations 40 to 45 and regulation 47, if they do not
exist in electronic format.
(6) The following rules shall apply to the transmission of
requests to participate
(a) requests to participate in procedures for the award of
contracts may be made in writing or by telephone;
(b) where requests to participate are made by telephone, a
written confirmation must be sent before expiry of the
time-limit set for their receipt;
(c) contracting authorities or entities may require that
requests for participation made by fax must be
confirmed by post or electronic means where this is
necessary for the purposes of legal proof. Any such
requirement, together with the time-limit by which it
must be met, must be stated by the contracting
authority or entity in the contract notice.
Section 5
Reports
38. (1) For every contract and framework agreement, the
contracting authorities or entities shall draw up a written report to
confirm that the selection procedure was undertaken in a
transparent and non-discriminatory manner, which shall include at
least the following
(a) the name and address of the contracting authority or
entity and the subject and value of the contract or
framework agreement;
(b) the award procedure chosen;
(c) in the case of a competitive dialogue, the
circumstances justifying the use of this procedure;
(d) in the case of a negotiated procedure without prior
publication of a contract notice, the circumstances
referred to in regulation 29 which justify the use of
this procedure; if appropriate, justification for
exceeding the time-limits laid down in the proviso to
regulation 29(c)(i) and the second proviso to
regulation 29(d)(ii) and for exceeding the 50% limit
laid down in the concluding provision of regulation
29(d)(i);
(e) if appropriate, the reasons for the
framework
agreement lasting more than seven years;
(f)
the name of the candidates chosen and the reason for
this choice;
(g) the name of the candidates excluded and the reasons
for their rejection;
(h) the reasons for the rejection of tenders;
(i)
the name of the successful tenderer and the reasons
why its tender was selected, and, if known, the share
of the contract or framework agreement which the
successful tenderer intends, or will be required, to
subcontract to third parties;
(j)
if necessary, the reasons why the contracting authority
or entity decided not to award a contract or framework
agreement.
(2) Contracting authorities or entities shall take appropriate
steps to document the progress of award procedures conducted by
electronic means.
(3) The report, or the main features of it, shall be
communicated to the Commission, if it so requests.
Chapter VII
Conduct of the procedure
Section 1
General Provisions
39. (1) Contracts shall be awarded on the basis of the criteria
laid down in regulations 48 and 50, taking into account regulation
20, after the suitability of the economic operators not excluded
under regulations 40 or 41 has been checked by contracting
authorities or entities in accordance with the criteria of economic
and financial standing, of professional and technical knowledge or
ability referred to in regulations 42 to 47 and, where appropriate,
with the non-discriminatory rules and criteria referred to in sub-
regulation (3).
(2) Contracting authorities or entities may require candidates to
meet minimum capacity levels in accordance with regulations 42
and 43 and the extent of the information referred to in regulations
42 and 43 and the minimum levels of ability required for a specific
contract must be related and proportionate to the subject-matter of
the contract.
These minimum levels shall be indicated in the contract
notice.
(3) In restricted procedures, negotiated procedures with
publication of a contract notice and competitive dialogues,
contracting authorities or entities may limit the number of suitable
candidates they will invite to tender or with which they will
conduct a dialogue. In this case
(a) the contracting authorities or entities shall indicate in
the contract notice the objective and non-
discriminatory criteria or rules they intend to apply,
the minimum number of candidates they intend to
invite and, where appropriate, the maximum number.
The minimum number of candidates they intend to
invite may not be less than three;
(b) subsequently, the contracting authorities or entities
shall invite a number of candidates at least equal to the
minimum number set in advance, provided a sufficient
number of suitable candidates is available.
(4) Where the number of candidates meeting the selection
criteria and the minimum levels of ability is below the minimum
number, the contracting authority or entity may continue the
procedure by inviting the candidate or candidates with the required
capabilities.
(5) If the contracting authority or entity considers that the
number of suitable candidates is too low to ensure genuine
competition, it may suspend the procedure and re-publish the initial
contract notice in accordance with regulations 31(2) and 33, fixing
a new deadline for the submission of requests to participate. In this
case, the candidates selected upon the first publication and those
selected upon the second shall be invited in accordance with
regulation 35. This option shall be without prejudice to the ability
of the contracting authority or entity to cancel the ongoing
procurement procedure and launch a new procedure.
(6) In the context of an award procedure, the contracting
authority or entity may not include economic operators other than
those which made a request to participate, or candidates without the
requisite capabilities.
(7) Where the contracting authorities or entities exercise the
option of reducing the number of solutions to be discussed or of
tenders to be negotiated, as provided for in regulations 27(6) and
28(4), they shall do so by applying the award criteria stated in the
contract notice or the contract documents. In the final stage, the
number arrived at shall make for genuine competition insofar as
there are enough solutions or suitable candidates.
Section 2
Criteria for qualitative selection
40. (1) Any candidate or tenderer which has been the subject
of a conviction by final judgment of which the contracting
authority or entity is aware, for one or more of the reasons listed
hereunder, shall be excluded from participation in a contract
(a) participation in a criminal organisation, as defined in
Article 2(1) of Joint Action 98/733/JHA;
(b) corruption, as defined in Article 3 of the Council Act
of 26 May 1997 drawing up, on the basis of Article
K.3 (2)(c) of the Treaty on European Union, the
Convention on the fight against corruption involving
officials of the European Communities or officials of
Member States of the European Union, and Article
2(1) of Council Framework Decision 2003/568/JHA of
22 July 2003 on combating corruption in the private
sector;
(c) fraud within the meaning of Article 1 of the
Convention relating to the Protection of the Financial
Interests of the European Communities;
(d) terrorist offences or offences linked to terrorist
activities, as defined in Articles 1 and 3 of Framework
Decision 2002/475/JHA respectively, or inciting,
aiding or abetting or attempting to commit an offence,
as referred to in Article 4 of that Framework Decision;
(e) money laundering and terrorist financing, as defined in
Article 1 of Directive 2005/60/EC
Provided that the Director may authorise a derogation from
the application of this sub-regulation for overriding requirements in
the general interest.
(2) For the purposes of sub-regulation (1), the contracting
authorities or entities shall, where appropriate, ask candidates or
tenderers to supply the documents referred to in sub-regulation (6)
and may, where they have doubts concerning the personal situation
of such candidates or tenderers, also apply to the competent
authorities to obtain any information they consider necessary on the
personal situation of the candidates or tenderers concerned.
(3) Where the information concerns a candidate or tenderer
established in a State other than that of the contracting authority or
entity, the contracting authority or entity may seek the cooperation
of the competent authorities.
(4) If the candidates or tenderers are established in Malta
according to nationals laws, the requests mentioned in this
regulation shall relate to legal and, or natural persons, including, if
appropriate, company directors and any person having powers of
representation, decision or control in respect of the candidate or
tenderer.
(5) Any economic operator may be excluded from participation
in a contract where that economic operator
(a) is bankrupt or is being wound up, or whose affairs are
being administered by the court, who has entered into
an arrangement with creditors or who has suspended
business activities or who is in any analogous situation
arising from a similar procedure under national laws
and regulations;
(b) is the subject of proceedings for a declaration of
bankruptcy, for an order for compulsory winding up or
administration by the court or for an arrangement with
creditors or of any other similar proceedings under
national laws or regulations;
(c) has been convicted of an offence concerning his
professional conduct by a judgement which has the
force of res judicata in accordance with national laws
or regulations;
(d) has been declared guilty of grave professional
misconduct proven by any means which the
contracting authorities or entities can demonstrate;
(e) has been found, on the basis of any means of evidence,
including protected data sources, not to possess the
reliability necessary to exclude risks to national
security;
(f)
has not fulfilled obligations relating to the payment of
social security contributions in accordance with
national laws or regulations or the country in which he
is established;
(g) has not fulfilled obligations relating to the payment of
taxes in accordance with national legal provisions or
the country in which he is established;
(h) is guilty of serious misrepresentation in supplying the
information required under these regulations or has not
supplied such information.
(6) Where the contracting authority requires proof from the
candidate or tenderer that none of the cases quoted in sub-
regulations (1) or (2)(a), (b), (c), (f) and (g) applies to him, it shall
accept, as sufficient evidence, relevant certification issued by a
competent judicial or administrative body in the country of origin
or the country whence that person comes showing that these
requirements have been met.
(7) Where the certification referred to in sub-regulations (1)
and (2)(a), (b) and (c) is not available, it may be replaced by a
declaration on oath or by a solemn declaration made by the person
concerned before a Commissioner for Oaths in Malta or before a
judicial or administrative authority, a notary or a competent
professional or trade body, in that person’s country of residence.
41. (1) The contracting authority or entity may request an
economic operator to prove his enrolment, as prescribed in his
country of establishment, in one of the professional or trade
registers or to provide a declaration or certificate as described in
Part A of Schedule VI for works contracts, Part B of Schedule VI
for supply contracts and Part C of Schedule VI for service
contracts.
(2) In procedures for the award of service contracts, insofar as
candidates have to possess a particular authorisation or be a
member of a particular organisation in order to be able to perform
the service concerned in their country of origin, the contracting
authority or entity may require them to prove that they hold such
authorisation or membership.
(3) The provisions of sub-regulations (1) and (2) shall be
without prejudice to the principles of Community Law on the
freedom of establishment and the freedom to provide services.
42. (1) Proof of the economic operator’s economic and
financial standing may, as a general rule, be furnished, inter alia,
by one or more of the following
(a) appropriate statements from banks, or where
appropriate, evidence of relevant professional
indemnity insurance;
(b) the presentation of balance-sheets or extracts
therefrom, where publication of the balance sheets is
required under company law in the country in which
the economic operator is established;
(c) a statement of the economic operator’s overall
turnover and, where appropriate, its turnover in respect
of the products, works or services to which the
contract relates for the three previous financial years
depending on the date on which the economic operator
was set up or the economic operator started trading, as
far as the information on these turnovers is available;
(2) An economic operator may, where appropriate and for a
particular contract, rely on the capacities of other entities,
regardless of the legal nature of the links which it has with them. It
must in that case prove to the contracting authority that it will have
at its disposal the resources necessary, for example, by producing
an undertaking by those entities to that effect.
(3) Under the same conditions, a group of economic operators
as referred to in regulation 6 may rely on the capabilities of
participants in the group or of other entities.
(4) Contracting authorities or entities shall specify, in the
contract notice or in the invitation to tender, which references
mentioned in sub-regulation (1) have been chosen and which must
be provided, and of any others it deems fit.
(5) In the event that a candidate or tenderer is, for any valid
reason, unable to provide the references requested by a contracting
authority or entity, its economic and financial standing may be
substantiated by any other document which the contracting
authority or entity considers appropriate.
43. (1) Evidence of the economic operators’ technical abilities
may be furnished by one or more of the following means according
to the nature, quantity or importance, and use of the works, supplies
or services
(a)
(i)
a list of the works carried out over the past five
years,
accompanied
by
certificates
of
satisfactory execution for the most important
works. These certificates shall indicate the
value, date and site of the works and shall
specify whether they were carried out according
to the rules of the trade and properly completed.
Where appropriate, the competent authority
shall submit these certificates to the contracting
authority direct;
(ii) a list of the principal deliveries effected or the
main services provided in the past three years,
with the sums, dates and recipients, whether
public or private, involved. Evidence of delivery
and services provided shall be given
-
where the recipient was a contracting
authority, in the form of certificates issued
or countersigned by the competent
authority;
-
where the recipient was a private
purchaser, by the purchaser’s certification
or, failing this, simply by a declaration by
the economic operator;
(b) an indication of the technicians or technical bodies
involved, whether or not belonging directly to the
economic operator’s undertaking, especially those
responsible for quality control and, in the case of
public works contracts, those upon whom the
contractor can call in order to carry out the work;
(c) a description of the technical facilities and measures
used by the economic operator to ensure quality and
the undertaking’s study and research facilities, as well
as internal rules regarding intellectual property;
(d) a check carried out by the contracting authorities or
entities or on their behalf by a competent official body
of the country in which the economic operator is
established, subject to that body’s agreement, on the
production capacities of the supplier or the technical
capacity of the economic operator and, if necessary, on
the means of study and research which are available to
it and the quality control measures it will operate;
(e) in the case of works contracts, service contracts or
supply contracts also covering siting and installation
operations or services, the educational and
professional qualifications of the economic operator
and, or those of the undertaking’s managerial staff and,
in particular, those of the person or persons
responsible for providing the services or managing the
work;
(f)
for public works contracts and public services
contracts, and only in appropriate cases, an indication
of the environmental management measures that the
economic operator will be able to apply when
performing the contract;
(g) a statement of the average annual manpower of the
service provider or contractor and the number of
managerial staff for the last three years;
(h) a description of the tools, material, technical
equipment, staff numbers and know-how and, or
sources of supply - with an indication of the
geographical location when it is outside the territory of
the European Union - which the economic operator has
at its disposal to perform the contract, cope with any
additional needs required by the contracting authority
or entity as a result of a crisis or carry out the
maintenance, modernisation or adaptation of the
supplies covered by the contract;
(i)
with regard to the products to be supplied, provision
of
(i)
samples, descriptions and or photographs, the
authenticity of which must be certified if the
contracting authority or entity so requests;
(ii) certificates drawn up by official quality control
institutes or agencies of recognised competence
attesting the conformity of products, clearly
identified by references to specifications or
standards;
(j)
in the case of contracts involving, entailing and, or
containing classified information, evidence of the
ability to process, store and transmit such information
at the level of protection required by the contracting
authority or entity.
(2) In the absence of harmonisation at Community level of
national security clearance systems, contracting authorities or
entities may provide that this evidence has to comply with the
relevant provisions of their respective national laws on security
clearance. Contracting authorities or entities shall recognise
security clearances which they consider equivalent to those issued
in accordance with t heir n ational law, notwithstanding t he
possibility to conduct and take into account further investigations
of their own, if considered necessary.
(3) The contracting authority or entity may, where appropriate,
grant candidates which do not yet hold security clearance
additional time to obtain such clearance. In this case, it shall
indicate this possibility and the time-limit in the contract notice.
(4) The contracting authority or entity may ask the national
security authority of the candidate’s Member State or the security
authority designated by that Member State to check the conformity
of the premises and facilities that may be used, the industrial and
administrative procedures that will be followed, the methods for
managing information and, or the situation of staff likely to be
employed to carry out the contract.
(5) An economic operator may, where appropriate and for a
particular contract, rely on the capacities of other entities,
regardless of the legal nature of the links which it has with them. It
shall in that case prove to the contracting authority or entity that it
will have at its disposal the resources necessary for the execution of
the contract, for example by producing an undertaking by those
entities to put the necessary resources at the disposal of the
economic operator.
(6) Under the same conditions, a group of economic operators
as referred to in regulation 6 may rely on the abilities of
participants in the group or of other entities.
(7) In procedures for awarding contracts having as their object
supplies requiring siting or installation work, the provision of
services and, or the execution of works, the ability of economic
operators to provide the service or to execute the installation or the
work may be evaluated in particular with regard to their skills,
efficiency, experience and reliability.
(8) The contracting authority or entity shall specify in the
notice which of the references referred to in sub-regulation (1) it
has chosen and which other references must be provided.
(9) In the event for any valid reason, the economic operator is
unable to provide the references requested by the contracting
authority or entity, it may prove its technical and, or professional
ability by any other document which the contracting authority or
entity considers appropriate.
44. Should contracting authorities or entities require the
production of certificates drawn up by independent accredited
bodies attesting the compliance of the economic operator with
certain quality management systems standards, such contracting
authorities or entities shall refer to quality management systems
based on the relevant European standards certified by independent
accredited bodies conforming to the European standards
concerning accreditation and certification. They shall recognise
equ ivalent certificates from independent accredited bodies
established in other Member States. They shall also accept other
evidence of equivalent quality management systems from economic
operators.
45. Should contracting authorities or entities, in the cases
referred to in regulation 43(1)(f), require the production of
certificates drawn up by independent bodies attesting the
compliance of the economic operator with certain environmental
management standards, they shall refer to the Community Eco-
Management and Audit Scheme (EMAS) or to environmental
management standards based on the relevant European or
international standards certified by bodies conforming to
Community law or the relevant European or international standards
concerning certification. They shall recognise equivalent
certificates from bodies established in other Member States. They
shall also accept other evidence of equivalent environmental
management measures from economic operators
46. The contracting authority or entity may invite economic
operators to supplement or clarify the certificates and documents
submitted pursuant to regulations 40 to 45.
47. (1) Contracting authorities or entities may introduce either
official lists of approved contractors, suppliers or service providers
or certification by certification bodies established under public or
private law.
(2) The Director shall adapt conditions for registration on the
lists and for the issue of certificates by certification bodies
mentioned in sub-regulation (1) to the provisions of regulation
42(1), (4) and (5), regulation 44(1)(a) to (i), (2) and (4) and, where
appropriate regulation 45.
(3) Furthermore the Director shall also adapt the conditions
referred to in sub-regulation (1) to regulations 42(2) and 43(2) as
regards application for registration submitted by economic
operators belonging to a group and claiming resources made
available to them by the other companies in the group. In such a
case, these operators must prove to the Director that they will have
these resources at their disposal throughout the period of validity of
the certificate attesting to their being registered in the official list,
and that throughout the same period these companies must continue
to fulfil the qualitative selection requirements laid down in the
provisions referred to in sub-regulation (2) on which operators rely
for their registration.
(4) Economic operators registered in the official lists of their
country may, for each contract, submit to the contracting authority
a certificate of registration issued by the competent authority. This
certificate shall state the reference which enabled them to be
registered in the list or to obtain certification and the classification
given in that list.
(5) Certified registration on official lists by the competent
authorities or a certificate issued by the certification body shall not,
for the purposes of the contracting authorities or entities of other
Member States, constitute a presumption of suitability except as
regards regulation 40(1) and (2)(a) to (d) and (h), regulation 41,
regulation 42(1)(b) and (c) and regulation 43(1)(a)(i) and (b) to (g)
in the case of contractors, regulation 43(1)(a)(ii), (b) to (e) and (i)
in the case of suppliers and regulation 43(1)(a)(ii), (b) to (e) and
(g) in the case of service providers.
(6) Information which can be deduced from registration on
official lists or certification may not be questioned without
justification. With regard to the payment of social security
contributions and taxes, an additional certificate may be required of
any registered economic operator whenever a contract is offered.
(7) The contracting authorities shall apply the above provisions
only in favour of economic operators established in the Member
State holding the official list.
(8) When economic operators from other Member States are
being registered in a local official list, no proof or statement can be
required other than those requested of national economic operators
and, in any event, only those provided for under regulations 40 to
44 and, where appropriate, regulation 45
Provided that economic operators from other Member
St a t e s m a y n o t b e o b l i g e d t o u n d e rg o s u c h r e g i s t r a t i o n o r
certification in order to participate in a contract. Contracting
authorities or entities shall recognise equivalent certificates from
bodies established in other Member States. They shall also accept
other equivalent means of proof.
(9) Economic operators may apply at any time to be registered
on an official list or for a certificate to be issued. They must be
informed within a reasonably short period of time of the decision of
the authority drawing up the list or of the competent certification
body.
(10 The certification bodies referred to in sub-regulation (1)
shall be bodies complying with European certification standards.
(11) Contracting authorities or entities that have official lists or
certification bodies as referred to in sub-regulation (1) shall be
obliged to inform the Commission and the other Member States of
the address of the body to which applications should be sent.
Section 3
Award of the contract
48. (1) The criteria on which the contracting authorities or
entities shall base the award of contracts shall be either
(a) when the award is made to the most economically
advantageous tender from the point of view of the
contracting authority or entity, various criteria linked
to the subject-matter of the contract in question: for
example, quality, price, technical merit, functional
characteristics, environmental characteristics, running
costs, lifecycle costs, cost-effectiveness, after-sales
service and technical assistance, delivery date and
delivery period or period of completion, security of
supply,
interoperability
and
operational
characteristics; or
(b) the lowest price only.
(2) The contracting authority or entity shall specify in the
contract documentation (contract notices, contract documents,
descriptive documents or supporting documents) the relative
weighting which it gives to each of the criteria chosen to determine
the most economically advantageous tender.
(3) The weightings can be expressed by providing for a range
with an appropriate maximum spread.
(4) Where, in the opinion of the contracting authority or entity,
weighting is not possible for demonstrable reasons, the contracting
authority or entity shall indicate in the contract documentation
(contract notices, contract documents, descriptive documents or
supporting documents) the criteria in descending order of
importance.
(1) The Director may provide that contracting authorities
or entities may use electronic auctions.
(2) In restricted and negotiated procedures with publication of
a contract notice, the contracting authorities or entities may decide
that the award of a contract shall be preceded by an electronic
auction when the contract specifications can be established with
precision.
(3) In the circumstances mentioned in sub-regulation (2), an
electronic auction may be held on the reopening of competition
among the parties to a framework agreement as provided for in
regulation 30(10)(b)(ii).
(4)
The electronic auction shall be based
(a) solely on price, where the contract is awarded to the
lowest price; or
(b) on price and, or on the new values of the features of
the tenders indicated in the contract documents, where
the contract is awarded to the most economically
advantageous tender.
(5) Contracting authorities or entities which decide to hold an
electronic auction shall state that fact in the contract notice.
(6) The contract documents shall include, inter alia, the
following details
(a) the features, the values for which will be the subject of
electronic auction, provided that such features are
quantifiable and can be expressed in figures or
percentages;
(b) any limitations 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 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.
(7) Before proceeding with an electronic auction, contracting
authorities or entities shall make a full initial evaluation of the
tenders in accordance with the award criterion or criteria set and
with the weighting fixed for them.
(8) All tenderers which have submitted admissible tenders shall
be invited simultaneously by electronic means to submit new prices
and, or new values; the invitation shall contain all relevant
information concerning individual connection to the electronic
equipment being used and shall state the date and time of the start
of the electronic auction. The electronic auction may take place in a
number of successive phases. The electronic auction may not start
sooner than two working days after the date on which invitations
are sent out.
(9) When the contract is to be awarded on the basis of the most
e c o n o m i c a l l y a d v a n t a g e o u s t e n d e r, t h e i n v i t a t i o n s h a l l b e
accompanied by the outcome of a full evaluation of the relevant
tenderer, carried out in accordance with the weighting provided for
in regulation 48(3).
(10) The invitation mentioned in sub-regulations (8) and (9)
shall also state the m athematical form ula to be used in the
electronic auction to determine automatic re-rankings on the basis
of the new prices and, or new values submitted. That formula shall
incorporate the weighting of all the criteria fixed to determine the
most economically advantageous tender, as indicated in the
contract notice or in the specifications; for that purpose, any ranges
shall, however, be reduced in advance to a specified value
Provided that where variants are authorised, a separate
formula shall be provided for each variant.
(11) Throughout each phase of an electronic auction, the
contracting authorities or entities shall instantaneously
communicate to all tenderers at least sufficient information to
enable them to ascertain their relative rankings at any moment.
They may also communicate other information concerning other
prices or values submitted, provided that that is stated in the
contract documents. 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.
(12) Contracting authorities or entities shall close an electronic
auction in one or more of the following manners
(a) in accordance with the date and time fixed in advance,
as indicated in the invitation to take part in the
auction;
(b) when they receive no more new prices or new values
which meet the requirements concerning minimum
differences. In that event, the contracting authorities or
entities shall state in the invitation to take part in the
auction the time which they will allow to elapse after
receiving the last submission before closing the
electronic auction;
(c) when the phases in the auction, fixed in the invitation
to take part in the auction, have been completed.
(13) When the contracting authorities or entities decide to close
an electronic auction in accordance with sub-regulation (12)(c),
possibly in combination with the arrangements laid down in sub-
regulation (12)(b), the invitation to take part in the auction shall
indicate the timetable for each phase of the auction.
(14) After closing an electronic auction, contracting authorities
or entities shall award the contract in accordance with regulation 48
on the basis of the results of the electronic auction.
(15) Contracting authorities or entities may not have improper
recourse to electronic auctions, nor may they use them in such a
way as to prevent, restrict or distort competition or to change the
subject-matter of the contract, as put for tender in the published
contract notice and defined in the contract documents.
(1) If, for a given contract, tenders appear to be
abnormally low in relation to the goods, works or services, the
contracting authority or entity shall, before it rejects those tenders,
request in writing details of the constituent elements of the tender
which it considers relevant.
(2) Details requested in accordance with sub-regulation (1)
may relate in particular to
(a) the economics of the construction
method,
manufacturing process or services provided;
(b) the technical solutions chosen and, or any
exceptionally favourable conditions available to the
tenderer for the execution of the work or for the supply
of the goods or services;
(c) the originality of the work, supplies or services
proposed by the tenderer;
(d) compliance with the provisions relating to
employment protection and working conditions in
force at the place where the work, service or supply is
to be performed;
(e) the possibility of the tenderer obtaining State aid.
(3) The contracting authority or entity shall verify those
constituent elements by consulting the tenderer, taking account of
the evidence supplied.
(4) Where a contracting authority or entity establishes that a
tender is abnormally low because the tenderer has obtained State
aid, the tender can be rejected on that ground alone only after
consultation with the tenderer where the latter is unable to prove,
within a sufficient time-limit fixed by the contracting authority or
entity, that the aid in question was granted legally. Where the
contracting authority or entity rejects a tender in those
circumstances, it shall inform the Commission thereof.
Part III
Rules applicable to subcontracting
Chapter 1
Subcontracts awarded by successful tenderers
which are not contracting authorities or entities
(1) Where, in accordance with regulation 22(3) and (4),
this Part applies, the Director shall take the necessary measures to
e ns ur e t h a t s u c c e s s fu l te n de r e r s w hi c h ar e no t c o nt r a c t in g
authorities or entities apply the rules set out in regulations 52 to 54
when they award subcontracts to third parties.
(2) For the purposes of sub-regulation (1), groups of
undertakings which have been formed to obtain the contract, or
undertakings related to them, shall not be considered third parties.
(3) The tenderer shall include the exhaustive list of such
undertakings in the tender. That list shall be updated following any
change in the relationship between the undertakings.
The successful tenderer shall act transparently and treat all
potential subcontractors in an equal and non-discriminatory way.
(1) When a successful tenderer which is not a contracting
authority or entity awards a subcontract which has a value,
excluding VAT, estimated not to be lower than the thresholds laid
down in regulation 9, it shall make known its intention by the way
of a notice.
(2) Subcontract notices shall contain the information referred
to in Schedule IV and any other information deemed useful by the
s u c c e s s f u l t e n d e r e r, i f n e c e s s a r y w i t h t h e a p p r o v a l o f t h e
contracting authority or entity.
(3) Subcontract notices shall be drawn up in accordance with
the standard form adopted by the Commission in accordance with
the advisory procedure referred to in Article 67(2) of Directive
2009/81/EC on the coordination of procedures for the award of
certain works contracts, supply contracts and service contracts by
contracting authorities or entities in the fields of defence and
security, and amending Directives 2004/17/EC and 2004/18/EC.
(4) Subcontract notices shall be published in accordance with
regulation 33(2) to (8).
(5) A subcontract notice shall not be required when a
subcontract meets the conditions of regulation 29.
(6) Successful tenderers may publish, in accordance with
regulation 33, subcontract notices for which advertising is not
required.
(7) Contracting authorities or entities may also provide that the
successful tenderer may fulfil the subcontracting requirement set
out in regulation 22(3) or (4) to (9) by awarding subcontracts on the
basis of a framework agreement concluded in accordance with the
rules set out in regulations 52 and 54 and in sub-regulations (1) to
(7) of this regulation.
(8) Subcontracts based on such a framework agreement shall be
awarded within the limits of the terms laid down in the framework
agreement. They may only be awarded to economic operators that
were originally party to the framework agreement. When awarding
contracts, the parties shall in all circumstances propose terms
consistent with those of the framework agreement.
(9) The term of a framework agreement may not exceed seven
years, except in exceptional circumstances determined by taking
into account the expected service life of any delivered items,
installations or systems, and the technical difficulties which a
change of supplier may cause.
(10) Framework agreements may not be used improperly or in
such a way as to prevent, restrict or distort competition.
(11) For the award of subcontracts which have a value,
excluding VAT, estimated to be less than the thresholds laid down
in regulation 9, successful tenderers apply the principles of the
Treaty regarding transparency and competition.
(12) Regulation 10 shall apply to the calculation of the estimated
value of subcontracts.
(1) In the subcontract notice, the successful tenderer shall
indicate the criteria for qualitative selection prescribed by the
contracting authority or entity, as well as any other criteria it will
apply for the qualitative selection of subcontractors. All these
criteria shall be objective, non-discriminatory and consistent with
the criteria applied by the contracting authority or entity for the
selection of the tenderers for the main contract. The capabilities
required must be directly related to the subject of the subcontract,
and the levels of ability required must be commensurate with it.
(2) The successful tenderer shall not be required to subcontract
if it proves to the satisfaction of the contracting authority or entity
that none of the subcontractors participating in the competition or
their proposed bids meet the criteria indicated in the subcontract
notice and thereby would prevent the successful tenderer from
fulfilling the requirements set out in the main contract.
Chapter II
Subcontracts awarded by successful tenderers
which are contracting authorities or entities
Where successful tenderers are contracting authorities or
entities, they shall comply with the provisions on main contracts
laid down in Parts I and II when they award subcontracts.
Part IV
Application of the Public Procurement Regulations
Regulations, 4, 5, 6,7, 8, 9, 10, 11, 12, 14, 34 and Parts VII,
VIII, IX, X, XI, XII, XIII and XIV of the Public Procurement
Regulations shall, mutatis mutandis, apply to these regulations.
Part V
Statistical Obligations
In order to permit assessment of the results of applying
these regulations, the Director shall forward to the Commission a
statistical report, prepared in accordance with regulation 58,
addressing supply, services and works contracts awarded by
contracting authorities or entities during the preceding year, by no
later than 31 October of each year.
(1) The statistical report shall specify the number and
value of contracts awarded. It shall address, separately, supply,
services and works contracts.
(2) The data referred to in sub-regulation (1) shall be broken
down by procedure used and shall specify, for each procedure,
supplies, services and works identified by group of the CPV
nomenclature.
(3) Where contracts have been concluded in accordance with
the negotiated procedure without publication of a contract notice,
the data referred to in sub-regulation (1) shall also be broken down
by the circumstances referred to in regulation 29.
(4) The content of the statistical report shall be determined in
accordance with the advisory procedure of the Commission as set
out in Article 67 of Directive 2009/81/EC on the coordination of
procedures for the award of certain works contracts, supply
contracts and service contracts by contracting authorities or entities
in the fields of defence and security, and amending Directives
2004/17/EC and 2004/18/EC.