CONCESSION CONTRACTS REGULATIONS

CONCESSION CONTRACTS

SUBSIDIARY LEGISLATION 601.09

CONCESSION CONTRACTS REGULATIONS

28th October, 2016

LEGAL NOTICE 353 of 2016, as amended by Legal Notices 26 of 2018 and 196, 414 of 2020

and 26 of 2022 and Acts XXVIII of 2018 and XVII of 2024 and Legal Notices 112 and 360 of

The title of these regulations is the Concession Contracts

Regulations.

Part I

General Provisions

Interpretation and scope

(1)

For the purposes of these regulations -

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

the following characteristics

(a) they are established for the specific purpose of

meeting needs in the general interest, not having an

industrial or commercial character;

(b) they have legal personality; and

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

regional or local authorities, or by other bodies

governed by public law; or are subject to management

supervision by those bodies or authorities; or have an

administrative, managerial or supervisory board, more

than half of whose members are appointed by the

State, regional or local authorities, or by other bodies

governed by public law;

"candidate" means an economic operator that has sought an

invitation or has been invited to take part in a concession award

procedure;

" C o m m e r c i a l S a n c t i o n Tr i b u n a l " m e a n s t h e C o m m e r c i a l

Sanction Tribunal as established under the Public Procurement

Regulations;

"concessionaire" means an economic operator which has been

awarded a concession;

"concession document" means any document produced or

referred to by the contracting authority or contracting entity to

describe or determine elements of the concession or the procedure,

including the concession notice, the technical and functional

requirements, proposed conditions of concession, formats for the

presentation of documents by candidates and tenderers, information

on generally applicable obligations and any additional documents;

"concessions" means works or services concessions, as defined

in paragraphs (a) and (b) hereunder

(a) "works concession" means a contract for pecuniary

interest concluded in writing by means of which one or

more contracting authorities or contracting entities

entrust the execution of works to one or more

economic operators the consideration for which

consists either solely in the right to exploit the works

that are the subject of the contract or in that right

together with payment;

(b) "services concession" means a contract for pecuniary

interest concluded in writing by means of which one or

more contracting authorities or contracting entities

entrust the provision and the management of services

other than the execution of works referred to in

paragraph (a) to one or more economic operators, the

consideration of which consists either solely in the

right to exploit the services that are the subject of the

contract or in that right together with payment.

The award of a works or services concession shall involve the

transfer to the concessionaire of an operating risk in exploiting

those works or services encompassing demand or supply risk or

both. The concessionaire shall be deemed to assume operating risk

where, under normal operating conditions, it is not guaranteed to

recoup the investments made or the costs incurred in operating the

works or the services which are the subject-matter of the

concession. The part of the risk transferred to the concessionaire

shall involve real exposure to the vagaries of the market, such that

any potential estimated loss incurred by the concessionaire shall

not be merely nominal or negligible;

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

authorities, bodies governed by public law or associations formed

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

governed by public law other than those authorities, bodies or

associations which pursue one of the activities referred to in

Schedule 4 and award a concession for the pursuit of one of those

activities;

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

staff members of the contracting authority or entity who are

involved in the conduct of the concession award procedure or may

influence the outcome of that procedure have, directly or indirectly,

a financial, economic or other personal interest which might be

perceived to compromise their impartiality and independence in the

context of the concession award procedure;

"Director" means the Director of Contracts as established under

the Public Procurement Regulations;

"economic operator" means any natural or legal person, or public

entity, or a group of such persons or entities, including temporary

associations of undertakings, which offers the execution of works

and, or a work, the supply of products or the provision of services

on the market;

"electronic means" means electronic equipment for the

processing (including digital compression) and storage of data

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

optical means or by other electromagnetic means;

"Evaluation Committee" means boards or committees appointed

by the Director with the purpose of evaluating tenders received and

for making recommendations thereon;

"exclusive right’ means a right granted by a competent authority

of a Member State by means of any law, regulation or published

administrative provision which is compatible with the Treaties, the

effect of which is to limit the exercise of an activity to a single

economic operator and which substantially affects the ability of

other economic operators to carry out such an activity;

"execution of works" means the execution, or both the design

and execution, of works related to one of the activities referred to

in Schedule 2 or of a work, or the realisation, by whatever means,

of a work corresponding to the requirements specified by the

contracting authority or contracting entity exercising a decisive

influence on the type or design of the work;

"General Contracts Committee" means the General Contracts

Committee as established under the Public Procurement

Regulations;

"Government’s e-procurement p la tform" i s an electronic

platform which the Director may indicate from time to time by

means of a circular;

"innovation" means the implementation of a new or significantly

improved product, service or process, including but not limited to

production, building or construction processes, a new marketing

method, or a new organisational method in business practices,

workplace organisation or external relations, inter alia, with the

purpose of helping to solve societal challenges or to support the

Europe 2020 strategy;

"local authorities" includes all authorities of the administrative

units falling under NUTS 3 and smaller administrative units, as

referred to in Regulation (EC) No 1059/2003;

"Minister" means the Minister responsible for finance;

"modification" means any change, variation or amendment to the

original terms of the concession contract including but not limited

to the introduction of new conditions and to the removal or

replacement of existing conditions;

"Public Contracts Review Board" means the Public Contracts

Review Board as established under the Public Procurement

Regulations;

"public undertaking" means any undertaking over which the

contracting authorities may exercise, directly or indirectly, a

dominant influence by virtue of their ownership thereof, their

financial participation therein, or the rules which govern it;

"regional authorities" include all authorities of the administrative

units listed non-exhaustively in NUTS 1 and 2, as referred to in

Regulation (EC) No 1059/2003;

"special right" means a right granted by a competent authority of

a Member State by means of any law, regulation or published

administrative provision which is compatible with the Treaties the

effect of which is to limit the exercise of an activity to two or more

economic operators and which substantially affects the ability of

other economic operators to carry out such an activity;

"tenderer" means an economic operator which has submitted a

tender;

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

the Functioning of the European Union 2012/C326/01 including

any future amendment to the said Treaty;

"work" means the outcome of building or civil engineering

works taken as a whole which is sufficient in itself to fulfil an

economic or technical function;

"written" or "in writing" means any expression consisting of

words or figures which can be read, reproduced and subsequently

communicated, including information which is transmitted and

stored by electronic means.

(2) For the purposes of these regulations "contracting entities"

means entities which pursue one of the activities referred to in

Schedule 4 and award a concession for the pursuit of one of those

activities, and which are one of the following

(a) State, regional or local authorities, bodies governed by

public law or associations formed by one or more such

authorities or one or more such bodies governed by

public law;

(b) public undertakings;

(c) entities other than those referred to in paragraphs (a)

and (b) but which operate on the basis of special or

exclusive rights, granted for the exercise of one of the

activities referred to in Schedule 4;

(d) all entities listed under Schedule 1

Provided that entities which have been granted special

or exclusive rights by means of a procedure in which

adequate publicity has been ensured and where the

granting of those rights was based on objective criteria

shall not constitute "contracting entities" within the

meaning of paragraph (c). Such procedures shall

include

(i) procurement procedures with a prior call for

competition in conformity with the Public

Procurement

Regulations,

the

Public

Procurement of Contracting Authorities or

Entities in the fields of Defence and Security

Regulations, these regulations and the Public

Procurement of Entities Operating in Water,

Energy, Transport and Postal Services Sectors

Regulations;

(ii) procedures pursuant to other legal acts of the

Union listed in Schedule 5, ensuring adequate

prior transparency for granting authorisations on

the basis of objective criteria.

(3) For the purposes of the definition "public undertaking" a

dominant influence on the part of the contracting authorities shall

be p resumed in any o f the following cases, in which t hose

authorities, directly or indirectly

(a) hold the majority of the undertaking’s subscribed

capital;

(b) control the majority of the votes attaching to shares

issued by the undertaking;

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

administrative, management or supervisory body.

The scope of these regulations is to regulate the award of

works and service concessions to economic operators.

Applicability

Any concession procedure which has been issued prior to

the publication of these regulations shall continue to be regulated

by the laws which were previously in force, including any review

on any decision thereon.

(1)

These regulations shall not apply to

(a) services concessions awarded to a contracting

authority or to a contracting entity as referred to in

regulation 2(2)(a) or to an association thereof on the

basis of an exclusive right;

(b) services concessions awarded to an economic operator

on the basis of an exclusive right which has been

granted in accordance with the TFEU and Union legal

acts laying down common rules on access to the

market applicable to activities referred to in Schedule

4

Provided that where Union sectoral legislation referred

to in this paragraph does not provide for sector

specific transparency obligations, regulation 96 shall

apply

Provided further that where the contracting authority

or entity grants an exclusive right, with an estimated

value which meets or exceeds the value established

under Schedule 3, to an economic operator for the

exercise of one of the activities referred to in Schedule

4 the contracting authority or entity shall inform the

Commission thereof within one month after the award

of that exclusive right;

(c) concessions for air transport services based on the

granting of an operating licence within the meaning of

Regulation (EC) No 1008/2008 of the European

Parliament and of the Council or to concessions for

public passenger transport services within the meaning

of Regulation (EC) No 1370/2007;

(d) concessions which the contracting authority or

contracting entity is obliged to award or organise in

accordance with procedures different from those laid

down in these regulations established by any of the

following

(i)

a legal instrument creating international law

obligations, such as an international agreement

concluded in conformity with the TFEU between

a Member State and one or more third countries

CONCESSION CONTRACTS

or subdivisions thereof and covering works,

supplies or services intended for the joint

implementation or exploitation of a project by

their signatories;

(ii

an international organisation;

(e) concessions which the contracting authority or

contracting entity awards in accordance with

procurement rules provided by an international

organisation or international financing institution,

where the concessions concerned are fully financed by

that organisation or institution. In the case of

concessions co-financed for the most part by an

international organisation or international financing

institution, the parties shall agree on applicable

procurement procedures;

(f) paragraphs (d) and (e) shall not apply to concessions

awarded in terms of the Public Procurement of

Contracting Authorities or Entities in the fields of

Defence and Security Regulations;

(g) concessions in the fields of defence and security as

referred to and in terms of the Public Procurement of

Contracting Authorities or Entities in the fields of

Defence and Security Regulations, which are governed

by

(i)

specific procedural rules pursuant to an

international

agreement

or

arrangement

concluded between one or more Member States

and one or more third countries;

(ii) 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;

(iii) specific procedural rules of an international

organisation purchasing for its purposes, or to

concessions which must be awarded by a

contracting authority or contracting entity in

accordance with those rules;

(h) concessions in the fields of defence and security as

referred to in the Public Procurement of Contracting

Authorities or Entities in the fields of Defence and

Security Regulations which fall under one of the

following

(i)

concessions for which the application of these

regulations would oblige Malta to supply

information the disclosure of which it considers

contrary to the essential interests of its security;

or where the procurement and performance of

the concession are declared to be secret or must

be accompanied by special security measures in

accordance with the laws, regulations or

administrative provisions in force in Malta,

provided that Malta has determined that the

essential interests concerned cannot be

guaranteed by less intrusive measures, such as

those referred to in paragraph (i) hereunder;

(ii) concessions awarded in the framework of a

cooperative programme referred to in regulation

14 of the Public Procurement of Contracting

Authorities or Entities in the fields of Defence

and Security Regulations;

(iii) concessions awarded by a government to another

government relating to works and services

directly linked to military equipment or sensitive

equipment, or works and services specifically

for military purposes, or sensitive works and

sensitive services;

(iv) concessions awarded in a third country, carried

out when forces are deployed outside the

territory of the Union where operational needs

require those concessions to be concluded with

economic operators located in the area of

operations; and

(v) concessions otherwise exempted under these

regulations;

(i)

concessions not otherwise exempted under paragraph

(h) to the extent that the protection of the essential

security interests of Malta cannot be guaranteed by

less intrusive measures, for instance by imposing

requirements aimed at protecting the confidential

nature of information which the contracting authority

or contracting entity makes available in a concession

award procedure as provided for in these regulations;

(j)

service concessions for the acquisition or rental, by

whatever financial means, of land, existing buildings

or other immovable property or concerning rights

thereon;

(k) service concessions for the acquisition, development,

production or co-production of programme material

intended for audiovisual media services or radio media

services, that are awarded by audiovisual or radio

media service providers, or concessions for

broadcasting time or programme provision, that are

awarded to audiovisual or radio media service

providers;

(l)

service concessions for arbitration and conciliation

services;

(m) service concessions for any of the following legal

services

(i)

legal representation of a client by a lawyer

within the meaning of Article 1 of Council

Directive 77/249/EEC in an arbitration or

CONCESSION CONTRACTS

conciliation held in a Member State, a third

country or before an international arbitration or

conciliation instance, or judicial proceedings

before the courts, tribunals or public authorities

of a Member State or a third country or before

international courts, tribunals or institutions;

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

proceedings referred to in sub-paragraph (i) or

where there is a tangible indication and high

probability that the matter to which the advice

relates will become the subject of such

proceedings, provided that the advice is given by

a lawyer within the meaning of Article 1 of

Directive 77/249/EEC;

(iii) document certification and authentication

services which must be provided by notaries;

(iv) legal services provided by trustees or appointed

guardians or other legal services the providers of

which are designated by a court or tribunal in

Malta or are designated by law to carry out

specific tasks under the supervision of such

tribunals or courts;

(v) other legal services which in Malta are

connected, even occasionally, with the exercise

of official authority;

(n) service concessions for financial services in

connection with the issue, sale, purchase or transfer of

securities or other financial instruments within the

meaning of Directive 2004/39/EC of the European

Parliament and of the Council, central bank services

and operations conducted with the European Financial

Stability Facility and the European Stability

Mechanism;

(o) service concessions for loans, whether or not in

connection with the issue, sale, purchase or transfer of

securities or other financial instruments;

(p) civil defence, civil protection, and danger prevention

services that are provided by non-profit organisations

or associations, and which are covered by CPV codes

75250000-3, 75251000-0, 75251100-1, 75251110-4,

75251120-7, 75252000-7, 75222000-8, 98113100-9

and 85143000-3 except patient transport ambulance

services;

(q) political campaign services, which are covered by

CPV codes 79341400-0, 92111230-3 and 92111240-6,

when awarded by a political party in the context of an

election campaign;

(r) service concessions for lottery services, which are

covered by CPV code 92351100-7, awarded by Malta

to an economic operator on the basis of an exclusive

right. For the purpose of this paragraph, the notion of

exclusive right does not cover exclusive rights as

referred to in the proviso included under the definition

of the term "contracting entities" under regulation

2(2)

Provided that the grant of such an exclusive right shall

be subject to publication in the Official Journal of the

European Union;

(s) concessions awarded by contracting entities for the

pursuit of their activities in a third country, in

conditions not involving the physical use of a network

or geographical area within the Union.

(2) For the purposes sub-regulation (1)(k) "audiovisual media

services" and "media service providers" shall, respectively, have

the same meaning as in points (a) and (d) of Article 1(1) of

Directive 2010/13/EU of the European Parliament and of the

Council. "Programme" shall have the same meaning as in point (b)

of Article 1(1) of that Directive, but shall also include radio

programmes and radio programme materials. Furthermore, for the

purposes of this provision, "programme material" shall have the

same meaning as "programme".

(3) These regulations shall not affect social security systems of

Malta.

(4) Non-economic services of general interest shall fall outside

the scope of these regulations.

(5) These regulations shall also not affect the freedom of

government to define, what they consider to be services of general

economic interest, how those services should be organised and

financed, in compliance with the State aid rules, and what specific

obligations they should be subject to.

These regulations shall not apply to concessions for the

principal purpose of permitting the contracting authorities to

provide or exploit public communications networks, or to provide

to the public one or more electronic communications services

Provided that for the purposes of this regulation the term

"public communications network" and "electronic communications

service" shall have the same meaning as in Directive 2002/21/EC

of the European Parliament and of the Council.

(1) These regulations shall not apply to concessions

awarded to -

(a) provide or operate fixed networks intended to provide

a service to the public in connection with the

production, transport or distribution of drinking water;

(b) supply drinking water to such networks.

(2) These regulations shall also not apply to concessions with

one, or both of the following subject-matters when they are

connected with an activity referred to in sub-regulation (1)

(a) hydraulic engineering projects, irrigation or land

drainage, provided that the volume of water to be used

for the supply of drinking water represents more than

twenty per cent of the total volume of water made

available by such projects or irrigation or drainage

installations; or

(b) the disposal or treatment of sewage.

These regulations shall not apply to concessions awarded

by contracting entities where, for the Member State in which such

concessions are to be performed, it has been established pursuant to

regulation 28 of the Public Procurement of Entities Operating in

Water, Energy, Transport and Postal Services Sectors Regulations

that the activity is directly exposed to competition in accordance

with regulation 27 of the said regulations.

(1) Concessions for social and other specific services

listed in Schedule 6 having an estimated value which is less than

the threshold established under Schedule 3 and which fall within

the scope of these regulations shall be subject only to the

obligations arising from Part V.

(2) Concessions for social and other specific services listed in

Schedule 6, having an estimated value which meets or exceeds the

threshold established under Schedule 3 falling within the scope of

these regulations shall be subject only to the obligations arising

from regulations 95(3), 96 and Part V.

These regulations shall only apply to service concessions

for research and development services which are covered by CPV

codes 73000000-2 to 73120000-9, 73300000-5, 73420000-2 and

73430000-5 provided that both the following conditions are

fulfilled

(a) the benefits accrue exclusively to the contracting

authority or contracting entity for its use in the

conduct of its own affairs; and

(b) the service provided is wholly remunerated by the

contracting authority or contracting entity.

The Office of the Director of Contracts

Regulations 10 and 11 of the Public Procurement

Regulations shall apply mutatis mutandis to these regulations.

(1) For the purposes of these regulations it shall be the

function of the Director

(a) to evaluate and approve any request made in terms of

regulation 16(1)(b) and (2);

(b) to approve the appointment of members of the

evaluation committee following a recommendation by

the contracting authority or the contracting entity;

(c) to appoint members of the special contracts committee

after consultation with the contracting authority or the

contracting entity;

(d) to monitor the correct and efficient implementation of

these regulations;

(e) to give information and guidance on the interpretation

and application of these regulations free of charge and

to assist contracting authorities and entities and

economic operators in correctly applying these

regulations;

(f) to implement Part VI of the Public Procurement

Regulations also in respect of these regulations;

(g) to identify and implement appropriate means to enable

him to monitor the proper execution of contracts

awarded under these regulations; and

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

later than six months after the end of each financial

year, about the performance of the Special Contracts

Committee, during the financial year being reported

upon.

(2) When granting the approval to the request as provided for

in sub-regulation (1)(a) the Director may impose any conditions he

may deem fit.

(3) When the Director or any person delegated by him

identifies, through the monitoring activities identified under sub-

regulation (1)(d), specific violations, such as fraud, corruption,

conflict of interest and other serious irregularities, or systemic

problems, he shall report this matter to the appropriate authority.

(4) The Director shall publish an annual report detailing results

of the monitoring activities established in sub-regulation (1)(d).

When the Director becomes aware that the conditions

established under these regulations are not adhered to he may take

any action necessary including directing the contracting authority

or the contracting entity to cancel the procurement procedure.

The Director shall take appropriate measures to combat

fraud, favouritism and corruption and to effectively prevent,

identify and remedy conflicts of interest arising in the conduct of

concession award procedures, so as to avoid any distortion of

competition and to ensure the transparency of the award procedure

and the equal treatment of all candidates and tenderers

Provided that in instances of conflicts of interest, the

measures adopted shall not go beyond what is strictly necessary to

prevent a potential conflict of interest or eliminate a conflict of

interest that has been identified.

The Director has the power to request from any contracting

authority or entity any information and documentation he might

deem necessary in the execution of his tasks.

CONCESSION CONTRACTS

The Contracting Authority and Contracting Entity

(1) It shall be the duty of all contracting authorities or

contracting entities to

(a) observe these regulations;

(b) obtain the prior written consent of the Director before

publishing a concession document;

(c) publish concessions through government’s e-

procurement platform unless otherwise approved in

writing by the Director

Provided that where the Director approves the

publication of the said concession documents through

means other than the e-procurement platform the

contracting authority or the contracting entity shall

publicise the publication and the award of the

concession in question in the Gazette;

(d) administer the process leading to the award of a

concession contract;

(e) open offers in public;

(f)

publish the names of the bidders and if applicable any

prices quoted, either through Government’s e-

procurement platform or on the notice board at the

contracting authority’s or the contracting entity’s

premises;

(g) sign, as the case maybe, the contract with the bidder

who has been recommended for award;

(h) monitor the implementation of the procurement

procedure, the ensuing contract and contractual

relationship including any remission or imposition of

penalties;

(i)

ensure that in the performance of concession contracts

economic operators and their sub-contractors comply

with applicable obligations in the fields of

environmental, social and labour law established by

Union law, national law, collective agreements or by

the international environmental, social and labour law

provisions listed in Schedule 12;

(j)

make any payments resulting from the implementation

of the contract;

(k) forward a copy of the contracts to the Director within

two working days from the date when these are signed;

(l)

institute and defend any judicial or arbitral

proceedings that may be necessary in relation to any

contract to be signed or that has been signed by them;

(m) notify the Commission, if so requested by the latter, of

the following information regarding the application of

regulations 18, 19 and 21

(i)

the names of the undertakings or joint ventures

concerned;

(ii) the nature and value of the concessions

involved;

(iii) proof, deemed necessary by the Commission,

that the relationship between the undertaking or

joint venture to which the concessions are

awarded and the contracting entity complies

with the requirements of regulations 17 to 21.

(2) In forwarding the request for the prior approval of the

Director as established under sub-regulation (1)(b), the contracting

authority or the contracting entity shall include the following

(a) a copy of the proposed concession documents;

(b) where the process is split in numerous stages, a copy

of the concession documents that will be used during

the process; and

(c) a list of the persons that will be involved in the

process.

(3) Where a contacting authority or contracting entity is not

listed under any schedule it shall have the same obligations of an

authority listed under Schedule 1.

Affiliated undertakings

For the purposes of regulations 18 to 20 "affiliated

undertaking" means any undertaking the annual accounts of which

are consolidated with those of the contracting entity in accordance

with the requirements of the Directive 2013/34/EU.

(1) In the case of entities which are not subject to

Directive 2013/34/EU including any future amendment to the same,

"affiliated undertaking" shall mean any undertaking that

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

influence by the contracting entity;

(b) may exercise a dominant

influence

over

the

contracting entity; or

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

dominant influence of another undertaking by virtue of

ownership, financial participation, or the rules which

govern it.

(2) For the purposes of sub-regulation (1), "dominant

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

Notwithstanding the provisions of regulation 22 and

provided that the conditions in regulation 20 are met, these

regulations shall not apply to concessions awarded

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

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

contracting entities for the purpose of carrying out

activities referred to in Schedule 4, to an undertaking

which is affiliated with one of those contracting

entities.

(1) The provisions of regulation 19 shall apply to

(a) service concessions provided that at least eighty per

cent of the average total turnover of the affiliated

undertaking over the preceding three years, taking into

account all services provided by that undertaking,

derives from the provision of services to the

contracting entity or other undertakings with which it

is affiliated;

(b) works concessions provided that at least eighty per

cent of the average total turnover of the affiliated

undertaking over the preceding three years taking into

account all works provided by that undertaking,

derives from the provision of works to the contracting

entity or other undertakings with which it is affiliated.

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

undertaking was created or commenced activities, the turnover is

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

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

regulation (1)(a) or (b) is credible, in particular by means of

business projections.

(3) Where more than one undertaking affiliated with the

contracting entity with which they form an economic group

provides the same or similar services or works, the percentages

referred to in sub-regulation (1) shall be calculated taking into

account the total turnover deriving respectively from the provision

of services or works by those affiliated undertakings.

Joint ventures

Notwithstanding the provisions of regulation 22, and

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

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

the instrument setting up the joint venture stipulates that the

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

the same period, these regulations shall not apply to concessions

awarded by any of the following

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

contracting entities for the purpose of carrying out

activities referred to in Schedule 4, to one of these

contracting entities; or

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

forms part.

Concessions between Entities within the Public Sector

(1) A concession awarded by a contracting authority or a

contracting entity as referred to in regulation 2(2)(a) to a legal

person governed by private or public law shall fall outside the

scope of these regulations where all of the following conditions are

fulfilled

(a) the contracting authority or contracting entity

exercises over the legal person concerned a control

which is similar to that which it exercises over its own

departments;

(b) more than eighty per cent of the activities of the

controlled legal person are carried out in the

performance of tasks entrusted to it by the controlling

contracting authority or contracting entity or by other

legal persons controlled by that contracting authority

or contracting entity; and

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

controlled legal person with the exception of non-

controlling and non-blocking forms of private capital

participation required by national legislative

provisions, in conformity with the Treaties, which do

not exert a decisive influence on the controlled legal

person.

(2) A contracting authority or contracting entity as referred to

in regulation 2(2)(a) shall be deemed to exercise over a legal

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

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

exercises a decisive influence over both strategic objectives and

significant decisions of the controlled legal person. That control

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

controlled in the same way by the co ntract ing autho rity or

contracting entity.

(3) Sub-regulations (1) and (2) also apply where a controlled

legal person which is a contracting authority or contracting entity

as referred to regulation 2(2)(a) awards a concession to its

controlling contracting authority or contracting entity, or to another

legal person controlled by the same contracting authority or

contracting entity, provided that there is no direct private capital

participation in the legal person being awarded the concession with

the exception of non-controlling and non-blocking forms of private

capital participation required by national legislative provisions, in

conformity with the Treaties, which do not exert a decisive

influence on the controlled legal person.

(1) A contracting authority or a contracting entity as

referred to in regulation 2(2)(a), which does not exercise control

over a legal person governed by private or public law within the

meaning of regulation 22, may nevertheless award a concession to

that legal person without applying these regulations where all of

the following conditions are fulfilled

(a) the contracting authority or contracting entity as

referred to in regulation 2(2)(a) exercises jointly with

other contracting authorities or contracting entities a

control over that legal person which is similar to that

which they exercise over their own departments;

(b) more than eighty per cent of the activities of that legal

person are carried out in the performance of tasks

entrusted to it by the controlling contracting

authorities or contracting entities or by other legal

persons controlled by the same contracting authorities

or contracting entities; and

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

controlled legal person with the exception of non-

controlling and non-blocking forms of private capital

participation required by national legislative

provisions, in conformity with the Treaties, which do

not exert a decisive influence on the controlled legal

person.

(2) For the purposes of sub-regulation (1)(a), contracting

authorities or contracting entities as referred to in regulation

2(2)(a) exercise joint control over a legal person where all of the

following conditions are fulfilled

(a) the decision-making bodies of the controlled legal

person are composed of representatives of all

participating contracting authorities or contracting

entities. Individual representatives may represent

several or all of the participating contracting

authorities or contracting entities;

(b) those contracting authorities or contracting entities are

able to jointly exert decisive influence over the

strategic objectives and significant decisions of the

controlled legal person; and

(c) the controlled legal person does not pursue any

interests which are contrary to those of the controlling

contracting authorities or contracting entities.

A contract concluded exclusively between two or more

contracting authorities or contracting entities as referred to in

regulation 2(2)(a) shall fall outside the scope of these regulations

where all of the following conditions are fulfilled

(a) the contract establishes or implements a cooperation

between the participating contracting authorities or

contracting entities with the aim of ensuring that

public services they have to perform are provided with

a view to achieving objectives they have in common;

(b) the implementation of that cooperation is governed

solely by considerations relating to the public interest;

and

(c) the participating contracting authorities or contracting

entities perform in the open market less than twenty

per cent of the activities concerned by the cooperation.

(1) For the determination of the percentage of activities

referred to in regulations 22(1)(b), 23(1)(b) and 24(c), the average

total turnover or an appropriate alternative activity based measure

such as costs incurred by the relevant legal person, contracting

authority or contracting entity as referred to in regulation 2(2)(a)

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

preceding the concession award shall be taken into consideration.

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

person, contracting authority or contracting entity was created or

commenced act ivities or because of a reorganisation of its

activities, the turnover, or alternative activity based measure such

as costs, are either not available for the preceding three years or no

longer relevant, it shall be sufficient to show that the measurement

of activity is credible, particularly by means of business

projections.

Mixed contracts

Concessions which have as their subject-matter both works

and services shall be awarded in accordance with the provisions

applicable to the type of concession that characterises the main

subject-matter of the contract in question.

In the case of mixed concessions consisting partly of social

and other specific services listed in Schedule 6 and partly of other

services, the main subject-matter shall be determined according to

which of the estimated values of the respective services is the

higher.

Where part of a given contract is covered by Article 346 of

the TFEU or by the Public Procurement of Contracting Authorities

or by the Public Procurement of Contracting Authorities or Entities

in the fields of Defence and Security Regulations, regulation 33 of

these regulations shall apply.

In the case of contracts intended to cover several activities,

one of them being subject either to Schedule 4 of these regulations

or to the Public Procurement of Entities operating in Water, Energy,

Transport and Postal Services Sectors Regulations, the applicable

provisions shall be established in accordance with regulation 34 of

these regulations and regulation 6 of the Public Procurement of

Entities operating in Water, Energy, Transport and Postal Services

Sectors Regulations, respectively.

Where the different parts of a given contract are objectively

separable, the provisions of regulation 31 shall apply. Where the

different parts of a given contract are objectively not separable, the

provisions of regulation 32 shall apply.

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

matter elements covered by these regulations as well as other

elements, contracting authorities and contracting entities may

choose to award separate contracts for the separate parts. Where

contracting authorities or contracting entities choose to award

separate contracts for separate parts, the decision as to which legal

regime applies to any one of such separate contracts shall be taken

on the basis of the characteristics of the separate part concerned.

(2) Where contracting authorities or contracting entities choose

to award a single contract, these regulations shall, unless otherwise

provided in sub-regulation (3) or in regulation 33, apply to the

ensuing mixed contract, irrespective of the value of the parts that

would otherwise fall under a different legal regime and irrespective

of which legal regime those parts would otherwise have been

subject to.

(3) In the case of mixed contracts containing elements of

concessions as well as elements of public contracts covered by the

Public Procurement Regulations, or contracts covered by Public

Procurement of Entities operating in Water, Energy, Transport and

Postal Services Sectors Regulations, the mixed contract shall be

awarded in accordance with the Public Procurement Regulations, or

the Public Procurement of Entities operating in Water, Energy,

Transport and Postal Services Sectors Regulations, respectively.

(1) Where the different parts of a given contract are

objectively not separable, the applicable legal regime shall be

determined on the basis of the main subject-matter of that contract.

(2) In the event that the contracts identified in sub-regulation

(1) involve both elements of a services concession and of a supply

contract, the main subject-matter shall be determined according to

which of the estimated values of the respective services or supplies

is the higher.

(1) In the case of mixed contracts which have as their

subject-matter elements of a concession covered by these

regulations and procurement or other elements covered by Article

346 of the TFEU or the Public Procurement of Contracting

Authorities or Entities in the fields of Defence and Security

Regulations, this regulation shall apply.

(2) In the case of contracts intended to cover several activities,

one of them being subject either to Schedule 4 of these regulations

or to the Regulations on the Public Procurement of Entities

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

and another being covered by Article 346 of the TFEU or the Public

Procurement of Contracting Authorities or Entities in the fields of

Defence and Security Regulations, the applicable provisions shall

be established in accordance with, regulation 35 of these

regulations and regulation 20 of the Public Procurement of Entities

operating in Water, Energy, Transport and Postal Services Sectors

Regulations, respectively.

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

separable, contracting authorities or contracting entities may

choose to award separate contracts for the separate parts or to

award a single contract.

(4) Where contracting authorities or contracting entities choose

to award separate contracts for separate parts, the decision of the

legal regime applicable to any one of such separate contracts shall

be taken on the basis of the characteristics of the separate part

concerned.

(5) Where contracting authorities or contracting entities choose

to award a single contract, the following criteria shall apply to

determine the applicable legal regime

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

346 of the TFEU, or different parts are covered by

Article 346 of the TFEU and the Public Procurement

of Contracting Authorities or Entities in the fields of

Defence and Security Regulations respectively, the

contract may be awarded without applying these

regulations, provided that the award of a single

contract is justified for objective reasons;

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

Procurement of Contracting Authorities or Entities in

the fields of Defence and Security Regulations, the

contract may be awarded in accordance with these

regulations or in accordance with Public Procurement

of Contracting Authorities or Entities in the fields of

Defence and Security Regulations, provided that the

award of a single contract is justified for objective

reasons

Provided that the decision to award a single contract shall

not, however, be taken for the purpose of excluding contracts from

the application of either these regulations or the Public

Procurement of Contracting Authorities or Entities in the fields of

Defence and Security Regulations.

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

not separable, the contract may be awarded without applying these

regulations where it includes elements to which Article 346 of the

TFEU applies. Otherwise the contracting authority or contracting

entity may choose to award a contract in accordance with these

regulations or in accordance with the Public Procurement of

Contracting Authorities or Entities in the fields of Defence and

Security Regulations.

(1) By way of derogation from regulations 20 to 26, in the

case of contracts intended to cover several activities, contracting

entities may choose to award separate contracts for the purposes of

each separate activity or to award a single contract. Where

contracting entities choose to award a separate contract, the

decision of which rules apply to any one of such separate contracts

shall be taken on the basis of the characteristics of the separate

activity concerned.

(2) Notwithstanding the provisions of regulations 26 to 32,

where contracting entities choose to award a single contract, sub-

regulations (4) and (5) shall apply. However, where one of the

activities concerned is covered by Article 346 of the TFEU or the

Public Procurement of Contracting Authorities or Entities in the

fields of Defence and Security Regulations, regulation 35 of these

regulations shall apply.

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

a number of separate contracts shall not be made with the objective

of excluding the contract or contracts from the scope of these

regulations or, where applicable, from the scope of the Public

Procurement Regulations and, or the Public Procurement of

Entities operating in the Water, Energy, Transport and Postal

Services Sectors Regulations.

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

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

principally intended.

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

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

principally intended, the applicable rules shall be determined in

accordance with the following

(a) the concession shall be awarded in accordance with the

provisions of the regulations applicable to concessions

awarded by contracting authorities if one of the

activities for which the contract is intended is subject

to the provisions of the regulations applicable to

concessions awarded by contracting authorities and the

other is subject to the provisions of the regulations

applicable to concessions awarded by contracting

entities;

(b) the contract shall be awarded in accordance with

Public Procurement Regulations, if one of the

activities for which the contract is intended is subject

to these regulations and the other to Public

Procurement Regulations;

(c) the contract shall be awarded in accordance with these

regulations, if one of the activities for which the

contract is intended is subject to these regulations and

the other is not subject to either this regulation, the

Public Procurement Regulations, or the Public

Procurement of Entities operating in Water, Energy,

Transport and Postal Services Sectors Regulations.

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

activities, contracting entities may choose to award separate

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

single contract. Where contracting entities choose to award

separate contracts for separate parts, the decision as to which legal

regime applies to any one of such separate contracts shall be taken

o n t h e b a si s o f t h e c h a r a c t e r i s t i c s o f t h e s e p a r a t e a c t i v i t y

concerned.

(2) Notwithstanding the provisions of regulation 33, where

contracting entities choose to award a single contract, sub-

regulations (4), (5) and (6) shall apply.

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

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

objective of excluding the contract or contracts from the scope of

application either of this regulation or the Public Procurement of

Contracting Authorities or Entities in the fields of Defence and

Security Regulations.

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

is subject to these regulations and another which is -

(a) covered by Article 346 of the TFEU; or

(b) subject to the Public Procurement of Contracting

Authorities or Entities in the fields of Defence and

Security Regulations,

the contracting entity may

(i)

award a contract without applying these

regulations in the cases set out under paragraph

(a); or

(ii) award a contract either in accordance with these

regulations or in accordance with the Public

Procurement of Contracting Authorities or

Entities in the fields of Defence and Security

Regulations, in the cases set out under paragraph

(b)

Provided that this sub-paragraph is without prejudice

to the thresholds and exclusions provided for by Public

Procurement of Contracting Authorities or Entities in

the fields of Defence and Security Regulations.

(5) Contracts referred to in sub-regulation (4)(b), which also

include procurement or other elements which are covered by

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

regulations.

(6) However, it shall be a condition for the application of sub-

regulations (4) and (5) that the award of a single contract is

justified on objective reasons and the decision to award a single

contract is not taken for the purpose of excluding contracts from

the application of these regulations.

Special Contracts Committee and Evaluation Committee

The Director can appoint for a particular concession a

Special Contracts Committee on such terms and conditions as may

be specified in their letter of appointment;

(1) The Special Contracts Committee may be composed of

a chairman, together with not less than four and not more than ten

other members who appear to have the relevant qualifications or

experience.

(2) Members of the General Contracts Committee can be

appointed to serve as members of the Special Contracts Committee.

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

appointed for the duration of the adjudication process of the

particular call for tenders, until the tender is awarded or else until

the award of the public contract is withdrawn.

Any member of the Special Contracts Committee may

during his tenure of office be removed by the Director where he is

satisfied that there has been a clear case of misbehaviour by the

member or inability of a member to perform his functions or where

such circumstances exist that would disqualify such a member from

remaining a member

Provided that, if the chairman of the Special Contracts

Committee is the Director, the latter may be removed by the

Minister.

A person shall be disqualified from being appointed to and

from remaining a member of a Committee if he

(a) is a member of the House of Representatives, or of the

European Parliament or of a Local Council;

(b) has such a financial or other interest as is likely to

prejudice the discharge of his functions as a member of

the Contracts Committees;

(c) is legally incapacitated or interdicted;

(d) has been adjudged bankrupt or has made a composition

or arrangement with his creditors; or

(e) has been convicted of a crime affecting public trust or

of theft or of fraud or of knowingly receiving property

obtained by theft or fraud.

A member of either of these committees may resign his

office by letter addressed to the Director.

A member of the Special Contracts Committee who has any

direct or indirect interest in any contract dealt with by such

committee shall disclose the nature of his interest at the first

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

knowledge; such disclosure shall be recorded in the minutes of that

meeting of the committee and the member having an interest as

aforesaid shall withdraw from any meetings at which such contract

is discussed.

The Director may also appoint persons from among the

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

committees. T he secretaries sh all not be m emb ers of th ese

committees and may not vote.

The meetings of the Special Contracts Committees shall be

called by the chairman who shall preside over such meetings. The

majority of the members of the Special Contracts Committee shall

constitute a quorum at a meeting thereof.

Apart from what is stated in these regulations, the Special

Contracts Committees established in terms of these regulations

shall regulate their own proceedings.

Decisions of the Special Contracts Committee shall

preferably be taken on the basis of unanimity. However, majority

decisions shall be final and binding with regard to the award of the

contract. The chairman shall in the event of an equality of votes,

have a casting vote.

The Special Contracts Committees shall

(a) advise on all matters relating to services and works

concessions either on their own initiative or on

specific issues relating to its functions which may

from time to time be referred to it for its advice;

(b) open tenders in a public session;

(c) evaluate reports and recommendations submitted by

evaluation

committees

and

make

definite

recommendations to the contracting authority or the

contracting entity for the award of services

concessions ensuring that the best value for money is

obtained. In this regard, due consideration shall be

given to

(i)

the final cost including financing costs to the

contracting authority or the contracting entity;

and

(ii) the impact of each offer on the recurrent

expenditure of a contracting authority or the

contracting entity;

(d) report any irregularities that may be brought to its

notice or that may be detected in the tendering process

and make recommendations thereon to the Minister

charged with responsibility for the contracting

authority or the contracting entity concerned.

The Special Contracts Committee shall, when applicable,

publish the list of tenders received, together with the respective

prices, which list shall be given publicity by the Director

immediately after their opening and scheduling.

(1) There shall be an Evaluation Committee composed at

least of five members two of which shall be the chairman and the

secretary. In any case the number of members of the Evaluation

Committee shall be an odd number.

(2) The members of the Evaluation Committee shall be

approved by the Director following a recommendation by the head

of the contracting authority or the contracting entity.

(3) Regulations 38 to 41 shall apply mutatis mutandis to the

members of the Evaluation Committee.

The chairman and the secretary shall not have any voting

powers.

(1) Where the chairman believes that the Evaluation

Committee needs specialised support he shall forward a request to

the head of the contracting authority or the contracting entity who

made the recommendation in terms of regulation 48(2).

(2) The head of the contracting authority or the contracting

entity shall afford the support in the shortest time possible.

(1) The role of the Evaluation Committee shall be that of

evaluating and dealing with the submissions made by a candidate or

tenderer as established in the concession documents and to make

recommendations to the contracting authority or the contracting

entity or the Special Contracts Committee as the case maybe.

(2) A copy of the recommendation shall be forwarded to the

Director within a reasonable time before publication of the

recommendation.

Boards and Tribunals

(1) The Public Contracts Review Board and the

Commercial Sanctions Tribunal as established under the Public

Contracts Regulations, 2016, shall be deemed competent

authorities to deal with matters and disputes falling under these

regulations.

(2) Regulations 80 to 99 of the Public Procurement Regulations

shall mutatis mutandis apply to these regulations.

Methods for calculating the estimated value of concessions

The value of a concession shall be the total turnover of the

concessionaire generated over the duration of the contract, net of

VAT, as estimated by the contracting authority or the contracting

entity, in consideration for the works and services being the object

of the concession, as well as for the supplies incidental to such

works and services.

(1) The estimate shall be valid at the moment at which the

concession notice is sent or, in cases where such notice is not

provided for, at the moment at which the contracting authority or

the contracting entity commences the concession award procedure,

for instance by contacting economic operators in relation to the

concessions.

(2) The determination of whether a concession exceeds the

threshold established under Schedule 3 is that if the value of the

concession is twenty per cent higher than its estimated value, then

the valid estimate shall be the value of the concession at the time of

the award.

(1) The estimated value of the concession shall be

calculated using an objective method specified in the concession

documents. When calculating the estimated value of the

concession, contracting authorities and contracting entities shall,

where applicable, take into account in particular

(a) the value of any form of option and any extension of

the duration of the concession;

(b) revenue from the payment of fees and fines by the

users of the works or services other than those

collected on behalf of the contracting authority or

contracting entity;

(c) payments or any financial advantage in any form

whatsoever made by the contracting authority or

contracting entity or any other public authority to the

concessionaire,

including

compensation

for

compliance with a public service obligation and public

investment subsidies;

(d) the value of grants or any other financial advantages,

in any form, from third parties for the performance of

the concession;

(e) revenue from sales of any assets which are part of the

concession;

(f)

the value of all the supplies and services that are made

available to the concessionaire by the contracting

authorities or contracting entities, provided that they

are necessary for executing the works or providing the

services;

(g) any prizes or payments to candidates or tenderers.

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

value of a concession shall not be made with the intention of

excluding it from the scope of these regulations. A concession shall

not be subdivided with the effect of preventing it from falling

within the scope of these regulations, unless justified by objective

reasons.

(1) Where a proposed work or service may result in

concessions being awarded in the form of separate lots, account

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

(2) Where the concession is divided into lots these regulations

shall apply to the awarding of each lot.

The Minister shall, from time to time, by regulations

determine the thresholds applicable under these regulations. Such

thresholds shall be reflected in Schedule 3.

The Tenderer/Candidate

(1) Economic operators that, under the law of the Member

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

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

under the law of the Member State in which the contract is

awarded, they would be required to be either natural or legal

persons.

(2) Legal persons may be required to indicate, in the tender or

in the application, the names and relevant professional

qualifications of the staff to be responsible for the performance of

the contract in question.

(3) Groups of economic operators, including temporary

associations, may participate in concession award procedures. They

shall not be required by contracting authorities or contracting

entities to have a specific legal form in order to submit a tender or a

request to participate.

(4) Notwithstanding the provisions of sub-regulations (1), (2)

and (3), contracting authorities or contracting entities may require

groups of economic operators to assume a specific legal form once

they have been awarded the contract, to the extent that such change

is necessary for the satisfactory performance of the contract.

(1) Where

necessary,

contracting

authorities

or

contracting entities may clarify in the concession documents how

groups of economic operators shall meet the requirements as to

economic and financial standing or technical and professional

ability referred to in regulations 77 and 78 provided that this is

justified by objective reasons and is proportionate.

(2) Contracting authorities may establish standard terms for

how groups of economic operators are to meet the requirements in

sub-regulation (1). Any conditions for the performance of a

concession by such groups of economic operators, which are

different from those imposed on individual participants, shall also

be justified by objective reasons and shall be proportionate.

(1) Contracting authorities and contracting entities shall

treat economic operators equally and without discrimination and

shall act in a transparent and proportionate manner.

(2) The design of the concession award procedure, including

the estimate of the value, shall not be made with the intention of

excluding it from the scope of these regulations or of unduly

favouring or disadvantaging certain economic operators or certain

works, supplies or services.

(3) Contracting authorities and contracting entities shall aim at

ensuring the transparency of the award procedure and of the

performance of the contract, while complying with regulations 64

and 65.

Part II

The Process

Setting Up of Procedure

(1) The contracting authority or contracting entity shall

have the freedom to organise the procedure leading to the choice of

concessionaire subject to compliance with these regulations.

(2) The design of the concession award procedure shall respect

the principles laid down in regulation 60. In particular during the

concession award procedure, the contracting authority or

contracting entity shall not provide information in a discriminatory

manner which may give some candidates or tenderers an advantage

over others.

(1) Concessions shall be awarded on the basis of the

award criteria set out by the contracting authority or contracting

entity in accordance with regulation 79 provided that all of the

following conditions are fulfilled

(a) the tender complies with the minimum requirements

set, where applicable, by the contracting authority or

contracting entity;

(b) the tenderer complies with the conditions

for

participation as referred to in regulation 77;

(c) the tenderer is not excluded from participating in the

award procedure in accordance with Part VI of the

Public Procurement Regulations; and

(d) the tenderer is not black listed in terms of Part VI of

the Public Procurement Regulations.

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

(1)(a) shall contain conditions and characteristics (particularly

technical, physical, functional and legal) that any tender should

meet or possess.

(1) Unless otherwise provided in these regulations or in

any legislation concerning access to information, and without

prejudice to the obligations relating to the advertising of awarded

concession contracts and to the information to candidates and

tenderers set out in regulations 80 and 96, the contracting authority

or contracting entity shall not disclose information forwarded to it

by economic operators which they have designated as confidential,

including but not limited to, technical or trade secrets and the

confidential aspects of tenders.

(2) Without prejudice to what is stated in these regulations the

following information shall not be considered as confidential

(a) the name of the bidders and the individual names of

the members of a group of economic operators who

submitted a particular tender;

(b) the name of the sub-contractors;

(c) documentation submitted by economic operators

attesting that they comply with selection criteria; and

(d) technical information which is already public.

(1) The provisions of regulation 63 shall not prevent

public disclosure of non-confidential parts of concluded contracts,

including any subsequent changes.

(2) The contracting authority or a contracting entity may

impose on economic operators requirements aimed at protecting the

confidential nature of information which it makes available

throughout the concession award procedure.

The contracting authority or contracting entity shall

communicate the description of the envisaged organisation of the

procedure and an indicative completion deadline to all participants.

Any modification shall be communicated to all participants and, to

the extent that they concern elements disclosed in the concession

notic e or in the Gazette, as t he case maybe, they are to b e

advertised to all economic operators.

The contracting authority or contracting entity shall provide

for appropriate recording of the stages of the procedure using the

means it judges appropriate, subject to compliance with regulations

63 and 64(1).

The contracting authority or contracting entity may hold

negotiations with candidates and tenderers. The subject-matter of

the concession, the award criteria and the minimum requirements

shall not be changed during the course of the negotiations.

(1) For tenders with an estimated value which meets or

exceeds the threshold established under Schedule 3, the contracting

authority or contracting entity shall provide

(a) in the concession notice, a description of the

concession and of the conditions of participation;

(b) in the invitation to submit a tender or in other

concession documents, a description of the award

criteria and, where applicable, the minimum

requirements to be met.

(2) The contracting authority or contracting entity may limit

the number of candidates or tenderers to an appropriate level on

condition that this is done in a transparent manner and on the basis

of objective criteria. The number of candidates or tenderers invited

shall be sufficient to ensure genuine competition.

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

applications or of tenders, contracting authorities or contracting

entities shall take account in particular the complexity of the

concession and the time required for drawing up tenders or

applications without prejudice to the minimum time limits set out

in this regulation.

(2) Where applications or tenders can be made only after a visit

to the site or after on-the-spot inspection of the documents

supporting the concession award documents, the time limits for the

receipt of applications for the concession or for the receipt of

tenders, shall be fixed so that all economic operators concerned

may be aware of all the information needed to produce applications

or tenders and, in any event, shall be longer than the minimum time

limits set out in sub-regulations (3) and (4).

(3) The minimum time limit for the receipt of applications

whether or not including tenders for the concession shall be thirty

days from the date on which the concession notice was sent.

(4) Where the procedure takes place in successive stages the

minimum time limit for the receipt of initial tenders shall be

twenty-two days from the date on which the invitation to tender is

sent.

(5) The time limit for receipt of tenders may be reduced by five

days where the contracting authority or contracting entity accepts

that tenders may be submitted by electronic means in conformity

with the provisions of regulation 75.

(1) Technical and functional requirements shall define the

characteristics required of the works or services that are the

subject-matter of the concession. They shall be set out in the

concession documents.

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

of production or provision of the requested works or services

provided that they are linked to the subject-matter of the contract

and proportionate to its value and its objectives. The characteristics

may for instance include quality levels, environmental and climate

p erform ance level s, design f or all req uiremen ts ( incl udi ng

accessibility for disabled persons) and conformity assessment,

performance, safety or dimensions, terminology, symbols, testing

and test methods, marking and labelling, or user instructions.

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

technical and functional requirements shall not refer to a specific

make or source, or a particular process which characterises the

products or services provided by a specific economic operator, or to

trade marks, patents, types or a specific production with the effect

of favouring or eliminating certain undertakings or certain

products. Such a reference shall be permitted, on an exceptional

basis, where a sufficiently precise and intelligible description of the

subject-matter of the contract is not possible. Such reference shall

be accompanied by the words ‘or equivalent’.

(4) A contracting authority or contracting entity shall not reject

a tender on the grounds that the works and services tendered for do

not comply with the technical and functional requirements to which

it has referred, once the tenderer proves in its tender, by any

appropriate means, that the solutions it has proposed satisfied in an

equivalent manner the technical and functional requirements.

Any references to nomenclatures in the context of the

award of concessions shall be made using the ‘Common

Procurement Vocabulary (CPV)’ as adopted by Regulation (EC) No

2195/2002 of the European Parliament and of the Council.

(1) The duration of concessions shall be limited.

(2) The contracting authority or contracting entity shall

estimate the duration on the basis of the works or services

requested.

(1) For concessions lasting more than five years, the

maximum duration of the concession shall not exceed the time that

a concessionaire could reasonably be expected to take to recoup the

investments made in operating the works or services together with

a return on invested capital taking into account the investments

required to achieve the specific contractual objectives.

(2) The investments taken into account for the purposes of the

calculation shall include both initial investments and investments

during the life of the concession.

(1) Contracting authorities may reserve the right to

participate in concession award procedures to sheltered workshops

and economic operators whose main aim is the social and

professional integration of disabled or disadvantaged persons or

may provide for such concessions to be performed in the context of

sheltered employment programmes, provided that at least thirty per

cent of the employees of those workshops, economic operators or

programmes are disabled or disadvantaged workers.

(2) In case of tenders with an estimated value which exceeds

the threshold established under Schedule 3, the concession notice

or, in the case of services concessions as defined in regulation 9(2),

prior information notice shall make reference to this regulation.

(1) All concessions issued by the contracting authorities

shall be published through government’s e-procurement platform

unless otherwise approved in writing by the Director and any

communication should be carried out through the same platform;

(2)

Upon the authorization of the Director, the contracting

authority or the contracting entity may choose one or more of the

following means of communication for all communication and

information exchange

(a) post or fax;

(b) oral communication, including telephone, in respect of

communications other than the essential elements of a

concession award procedure, and provided that the

content of the oral communication is documented to a

sufficient degree on a durable medium;

(c) hand delivery certified by an acknowledgement of

receipt.

(3) The means of communication chosen shall be generally

available and non-discriminatory, and shall not restrict economic

operators’ access to the concession award procedure. The tools and

devices to be used for communicating by electronic means, as well

as their technical characteristics shall be interoperable with the

information and communication technology products in general

use.

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

contracting authorities and contracting entities shall ensure that the

integrity of data and the confidentiality of applications and tenders

are preserved. They shall examine the content of applications and

tenders only after the time limit set for submitting them has

expired.

(1) Contracting authorities and contracting entities shall

offer by electronic means unrestricted and full direct access free of

charge to the concession documents.

(2) For tenders with an estimated value which is less than the

thresholds established under Schedule 3 the obligation set out

under sub-regulation (1) shall commence from the date on which

the concession document has been published.

(3) For tenders with an estimated value which meets or exceeds

t he thresh olds establ ished u nder Schedu le 3 the ob ligat ion

established under sub-regulation (1) shall commence from the

publication of a concession notice or, where the concession notice

does not include the invitation to submit tenders, from the date on

which an invitation to submit tenders was sent. The text of the

concession notice or of these invitations shall specify the internet

address at which the concession documents are accessible.

(4) Where, in duly justified circumstances, due to exceptional

security, or technical reasons or due to the particularly sensitive

nature of commercial information requiring a very high level of

protection, unrestricted and full direct access free of charge by

electronic means to certain concession documents cannot be

offered, contracting authorities or contracting entities shall indicate

in the notice or the invitation to submit a tender that the concession

documents concerned will be transmitted by other means than

electronic means and the time limit for the receipt of tenders shall

be prolonged.

(5) If requested in good time, the contracting authorities and

contracting entities or competent departments shall supply to all

applicants or tenderers taking part in the concession award

procedure additional information relating to the concession

documents not later than six days before the deadline fixed for the

receipt of tenders.

Qualitative Assessment and Selection of Candidates,

Economic Operators and Tenderers.

Contracting authorities and contracting entities shall verify

the conditions for participation relating to the professional and

technical ability and the financial and economic standing of the

candidates or tenderers, on the basis of self-declarations, reference

or references to be submitted as proof in accordance with the

requirements specified in the concession notice that shall be non-

discriminatory and proportionate to the subject-matter of the

concession. The conditions for participation shall be related and

proportionate to the need to ensure the ability of the concessionaire

to perform the concession, taking into account the subject-matter of

the concession and the purpose of ensuring genuine competition.

(1) With a view to meeting the conditions for participation

laid down in regulation 77 an economic operator may, where

appropriate and for a particular concession, rely on the capacities

of other entities, regardless of the legal nature of its links with

them. Where an economic operator wants to rely on the capacities

of other entities, it shall prove to the contracting authority or the

contracting entity that it will have at its disposal, throughout the

period of the concession, the necessary resources, for example, by

producing a commitment by those entities to that effect. With

regard to financial standing, the contracting authority or the

contracting entity may require that the economic operator and those

entities are jointly liable for the execution of the contract.

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

as referred to in regulations 58 and 59 may rely on the capacities of

participants in the group or of other entities.

Award of Contract

(1) Concessions shall be awarded on the basis of objective

criteria which comply with the principles set out in regulation 60

and which ensure that tenders are assessed in conditions of

effective competition so as to identify an overall economic

advantage for the contracting authority or the contracting entity.

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

the concession, and shall not confer an unrestricted freedom of

choice on the contracting authority or the contracting entity. They

may include, inter alia, environmental, social or innovation-related

criteria.

(3) Those criteria shall be accompanied by requirements which

allow the information provided by the tenderers to be effectively

verified.

(4)

The contracting authority or the contracting entity shall

verify whether tenders properly meet the award criteria.

(5) The contracting authority or the contracting entity shall list

the criteria in descending order of importance.

(6) Notwithstanding the provisions of sub-regulation (1), where

the contracting authority or contracting entity receive a tender

which proposes an innovative solution with an exceptional level of

functional performance which could not have been foreseen by a

diligent contracting authority or contracting entity, the contracting

authority or contracting entity may, exceptionally, modify the

ranking order of the award criteria to take into account that

innovative solution. In that case, the contracting authority or the

contracting entity shall inform all tenderers about the modification

of the order of importance and shall issue a new invitation to

submit tenders, in respect of the minimal time limits referred to in

regulation 69(4).

(7) Without prejudice to the provisions of sub-regulation (6),

where the award criteria have been published at the moment of the

publication of the concession notice, the contracting authority or

entity shall publish a new concession notice, in respect of the

minimum time limits referred to in regulation 69(3).

(8) The modification of the ranking order shall not result in

discrimination.

(1) The contracting authority or contracting entity shall as

soon as possible inform each candidate and tenderer of decisions

taken concerning the award of a concession, including the name of

the successful tenderer, the grounds for any decision to reject his

application or tender and the grounds for any decision not to award

a contract for which there has been publication of a concession

notice or to recommence the procedure.

(2) Further to what is stated under sub-regulation (1), on

request from the party concerned, the contracting authority or

contracting entity shall as quickly as possible, and in any case

within fifteen days from receipt of a written request inform any

tenderers that have made an admissible tender of the characteristics

and relative advantages of the tender selected.

(3) The contracting authority or contracting entity may decide

to withhold certain information referred to in sub-regulation (1),

regarding the contract, where the release of such information would

impede law enforcement, would otherwise be contrary to the public

interest, would prejudice the legitimate commercial interests of

economic operators, whether public or private, or might prejudice

fair competition between such operators.

Exclusion and Black Listing of Candidates, Economic Operators

and Tenderers

Part VI of the Public Procurement Regulations shall mutatis

mutandis apply to these regulations.

(1) In the case of concessions in the fields of defence and

security as referred to in Directive 2009/81/EC, an economic

operator may also be excluded from participation in a concession

award if on the basis of any means of evidence, including protected

data sources, he has been found not to possess the reliability

necessary to exclude risks to the security of the Republic of Malta.

(2) The period of exclusion in this scenario shall be three years

from the date of the relevant event.

Part III

Rules on Performance of Concession Contracts

Rules relating to subcontractors

(1) Contracting authorities shall ensure that the

obligations established under regulation 16(1)(i) are observed also

by sub-contractors.

(2) The concessionaire is liable for all acts or omissions carried

out by his subcontractors during the concession.

(1) In the concession documents, the contracting authority

or the contracting entity may ask the tenderer or the applicant to

indicate in its tender any share of the concession it may intend to

subcontract to third parties and any proposed subcontractors

Provided that a contracting authority or the contracting

entity may impose the obligation to deliver the required

information directly on the concessionaire.

(2) The provisions of regulation 83 and of sub-regulation (1)

shall not affect the liability of the main concessionaire.

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

to be provided at the facility under the oversight of the contracting

authority or the contracting entity, after the award of the concession

and at the latest when the performance of the concession

commences, the contracting authority or the contracting entity shall

require the concessionaire to indicate to the contracting authority or

the contracting entity the name, contact details and legal

representatives of its subcontractors, involved in such works or

services, insofar as known at that point in time.

(4) The contracting authority or the contracting entity shall

require the concessionaire to notify it of any changes to the

information supplied under sub-regulation (3) during the course of

the concession as well as of the required information for any new

subcontractors which it subsequently involves in such works or

services.

(5) The proviso to sub-regulation (1), and sub-regulations (3)

and (4) shall not apply to suppliers.

(6) Contracting authorities and contracting entities may extend

the obligations provided for in sub-regulations (3) and (4) amongst

others to the following

(a) services concessions other than those concerning

services to be provided at the facilities under the

oversight of the contracting authority or the

CONCESSION CONTRACTS

contracting entity or to suppliers involved in works or

services concessions;

(b) subcontractors of the concessionaire’s subcontractors

or further down the subcontracting chain.

Modifications of the Concession Contracts

(1) Concession contracts may be modified without a new

concession award procedure in any of the following cases

(a) where the modifications, irrespective of their monetary

value, have been provided for in the initial concession

documents in clear, precise and unequivocal review

clauses, which may include value revision clauses, or

options. Such clauses shall state the scope and nature

of possible modifications or options as well as the

conditions under which they may be used. They shall

not provide for modifications or options that would

alter the overall nature of the concession;

(b) for additional works or services by the original

concessionaire that have become necessary and that

were not included in the initial concession where a

change of concessionaire

(i)

cannot be made for economic or technical

reasons

such

as

requirements

of

interchangeability or interoperability with

existing equipment, services or installations

procured under the initial concession; and

(ii) would cause significant inconvenience or

substantial duplication of costs for the

contracting authority or contracting entity

Provided that in the case of concessions awarded by a

contracting authority or the contracting entity, for the

purposes of pursuing an activity other than those

referred to in Schedule 4, any increase in value shall

not exceed fifty per cent of the value of the original

concession;

(c) where all of the following conditions are fulfilled

(i)

the need for modification has been brought

about by circumstances which a diligent

contracting authority or contracting entity could

not foresee;

(ii) the modification does not alter the overall nature

of the concession;

(iii) in the case of concessions awarded by a

contracting authority or the contracting entity,

for the purposes of pursuing an activity other

than those referred to in Schedule 4, any

increase in value is not higher than fifty per cent

of the value of the initial concession;

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

the contracting authority or the contracting entity had

initially awarded the concession as a consequence of

either

(i)

an unequivocal review clause or option in

conformity with the provisions of paragraph (a);

(ii) universal or partial succession into the position

of the initial concessionaire, following corporate

restructuring, including takeover, merger,

acquisition or insolvency, of another economic

operator that fulfils the criteria for qualitative

selection initially established provided that this

does not entail other substantial modifications to

the contract and is not aimed at circumventing

the application of these regulations; or

(iii) in the event that the contracting authority or

contracting entity itself assumes the main

concessionaire’s

obligations

towards

its

subcontractors;

(e) where the modifications, irrespective of their value,

are not substantial within the meaning of sub-

regulation (5).

(2) When contracting authorities or contracting entities modify

a concession, which has an estimated value which meets or exceeds

the thresholds established under in Schedule 3, in terms of the

instances set out under sub-regulation (1)(b) and (c), it shall

publish a notice to that effect in the Official Journal of the

European Union. Such notice shall contain the information set out

in Schedule 13 and shall be published in accordance with the

provisions of regulation 97.

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

under sub-regulations (5)(a) to (d) are met, concessions may

equally be modified without a new concession award procedure

where the value of the modification is below both of the following

values

(a) the threshold set out under Schedule 3; and

(b) ten per cent of the value of the initial concession

Provided that the modification may not alter the overall

nature of the concession. Where several successive modifications

are made, the value shall be assessed on the basis of the net

cumulative value of the successive modifications.

(4) For the purpose of the calculation of the value referred to in

sub-regulation (1)(b) and (c) and sub-regulation (3), the updated

value shall be the reference value when the concession includes an

indexation clause. If the concession does not include an indexation

clause, the updated value shall be calculated taking into account the

average inflation in Malta.

(5) A modification of a concession during its term shall be

considered to be substantial within the meaning of sub-regulation

(1)(e), where it renders the concession materially different in

character from the one initially concluded. In any event, without

prejudice to the provisions of sub-regulations (1), (2) and (3), a

modification shall be considered to be substantial where one or

more of the following conditions is met

(a) the modification introduces conditions which, had they

been part of the initial concession award procedure,

would have allowed for the admission of applicants

other than those initially selected or for the acceptance

of a tender other than that originally accepted or would

have attracted additional participants in the concession

award procedure;

(b) the modification changes the economic balance of the

concession in favour of the concessionaire in a manner

which was not provided for in the initial concession;

(c) the modification extends the scope of the concession

considerably;

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

the contracting authority or contracting entity had

initially awarded the concession in other cases than

those provided for under sub-regulation (1)(d).

(6) A new concession award procedure in accordance with

these regulations shall be required for other modifications of the

provisions of a concession during its term than those provided for

under sub-regulations (1), (2) and (3).

In granting or refusing a modification, the contracting

authority or the contracting entity shall take account of whether any

force majeure, or unforeseen events prevail and shall specify

whether such a modification could have been avoided. T he

contracting authority or the contracting entity shall also establish

under which regulation this modification is being approved and a

detailed explanation and description of the modification in

question.

(1) The contracting authority or the contracting entity is to

keep a full record of modifications requests, including the name of

the concessionaire involved and details of the documents specified

in regulation 88.

(2) The contracting authority or the contracting entity shall

forward to the Director every six months a report on the

modifications including all the information included under

regulation 88 and sub-regulation (1) hereof

Provided that the Director may require further information

to that submitted by the contracting authority or the contracting

entity.

The document of the approved modification shall contain

the following information

(a) a detailed description

and

explanation

of

the

modification;

(b) the reasons and the legal basis which brought about the

need for this modification;

(c) the effect on the total cost of the concession contract

and any effect on the recurrent expenditure that will

ensue;

(d) the timeframe expected for the execution of the

modification; and

(e) the financial rate or any sum which should be paid in

respect of that modification.

(1) Once a contracting authority or a contracting entity

approves a modification, the concessionaire must lay down in

writing whether he accepts to execute the same modification at the

financial rates or sums and within the timeframe as specified by the

contracting authority or the contracting entity.

(2) If the concessionaire carries out the modification without

providing a written confirmation, it shall be deemed that he agreed

to perform the modification at the conditions stipulated by the

contracting authority or the contracting entity.

Any modification carried out against these regulations shall

be deemed to be founded on unlawful consideration and the

concessionaire shall have no right for compensation with respect to

that modification unless he shows that he was unaware about such

irregularity.

The Attorney General on behalf of the Government may

institute civil proceedings in a court of law for the restoration of

payments received by a concessionaire in bad faith in relation to

modifications executed against these regulations. Such action shall

not be subject to any prescriptive period.

A concessionaire shall desist from executing a

modification unless he is furnished with a written copy of the

approval from the contracting authority or the contracting entity

which specifies the regulation and paragraph under which the

modification is being approved.

(1) Disputes on whether a particular task forms part of the

concession contract or else constitutes a modification to the

original concession between the contracting authority or the

contracting entity and the concessionaire shall not delay or suspend

t h e c o n t i n u a t i o n o f t h e c o n c e s s i o n c o n t r a c t , h o w e v e r, t h e

concessionaire shall have the right to assert his claim before of any

court or tribunal against the contracting authority or the contracting

entity to receive additional payment for that task if it results that it

does not form part of the original concession contract.

(2) Such action for additional compensation by the

concessionaire shall be barred by prescription on the lapse of two

years to be reckoned from the day when the concessionaire

becomes aware or could have become aware of that task.

Termination of Concession Contracts

(1) Contracting authorities can terminate a contract during

its term, where

(a) a modification of the concession has taken place,

which would have required a new concession award

procedure pursuant to regulation 85;

(b) the concessionaire has been, at the time of concession

award, in one of the situations referred to in regulation

192 of the Public Procurement Regulations and should

therefore have been excluded from the concession

award procedure;

(c) a contracting authority or contracting entity has

awarded the concession without complying with its

obligations under the Treaties, Directive 2014/23/EU

of the European Parliament and of the Council of 26

February 2014 on the award of concession contracts or

these regulations;

(d) the contractor fails to discharge any obligation which

he has contracted.

(2) If the contracting authority or the contracting entity has no

valid reason for the termination, it is to compensate the contractor

for all his expenses and work and to pay him a sum to be fixed by

the court, according to circumstances, but not exceeding the profits

which the contractor could have made by the contract.

(3) If the contracting authority or the contracting entity has

valid reason for the termination, it is to pay the contractor only

such sum which shall not exceed the actual proven expenses and

work of the contractor.

(4) Any payment made in advance to the contractor before the

termination of the contract shall be applied to the sums due in terms

of sub-regulations (2) or (3) and the contractor shall return any

resulting excess to the contracting authority or the contracting

entity.

(5) The contract shall be immediately terminated when the

c on tr a c ti n g a u th or i ty or th e co nt r a c t in g e nt it y i nf o r ms t he

contractor, by any means whatsoever, of his decision to terminate

the contract, and this without the need of any authorization or

confirmation by any court or Board.

Part IV

Rules common to Concessions which meet or exceed the threshold

Publications

(1) Contracting authorities and contracting entities

wishing to award a concession shall make known their intention by

means of a concession notice.

(2) Concession notices shall contain the information referred to

in Schedule 7 and, where appropriate, any other information

deemed useful by the contracting authority or entity, in accordance

with the format of standard forms.

(3) Contracting authorities and contracting entities wishing to

award a concession for social and other specific services listed in

Schedule 6 shall make known their intention of the planned

concession award through the publication of a prior information

notice. Those notices shall contain the information set out in

Schedule 8.

(4) By way of derogation from the provisions of sub-regulation

(1), contracting authorities or contracting entities shall not be

required to publish a concession notice where the works or services

can be supplied only by a particular economic operator for any of

the following reasons

(a) the aim of the concession is the creation or acquisition

of a unique work of art or artistic performance;

(b) the absence of competition for technical reasons;

(c) the existence of an exclusive right;

(d) the protection of intellectual property rights and

exclusive rights other than those defined in regulation

2. (5) The exceptions set out in sub-regulation (4)(b), (c) and (d)

only apply when no reasonable alternative or substitute exists and

the absence of competition is not the result of an artificial

narrowing down of the parameters of the concession award.

(6) By way of derogation from the provisions of sub-regulation

(1), the contracting authority or contracting entity shall not be

required to publish a new concession notice where no applications,

no tenders, no suitable tenders or no suitable applications have

been submitted in response to a prior concession procedure,

provided that the initial conditions of the concession contract are

not substantially altered and that a report is sent to the

Commission, where it so requests.

(7) For the purposes of sub-regulation (6), a tender shall be

considered not to be suitable where it is irrelevant to the

concession, being manifestly incapable, without substantial

changes, of meeting the contracting authority or contracting

entity’s needs and requirements as specified in the concession

documents.

(8) For the purposes of the sub-regulation (6), an application

shall be considered not to be suitable

(a) where the applicant concerned shall or may be

excluded pursuant to regulations 193, 194(a) and (b)

and 199 of the Public Procurement Regulations, or

does not meet the selection criteria set out by the

contracting authority or the contracting entity pursuant

to the provisions of regulation 77;

(b) where applications include tenders which are not

suitable within the meaning of the sub-regulation (7).

(1) Not later than forty-eight days after the award of a

concession, the contracting authorities and contracting entities

shall, in accordance with the procedures laid down in regulation 97,

send a concession award notice on the results of the concession

award procedure. For social and other specific services listed in

Schedule 6, such notices may however be grouped on a quarterly

basis. In that case they shall send the grouped notices within forty-

eight days of the end of each quarter.

(2) Concession award notices shall contain the information set

out in Schedule 9 or in relation to concessions for social and other

specific services listed in Schedule 6, the information set out in

Schedule 10, and shall be published in accordance with the

provisions of regulation 97.

(1) Concession notices, concession award notices and the

notice referred to in regulation 85(2) shall include the information

set out in Schedules 7, 9 and 10 and in the format of standard

forms, including standard forms for corrigenda.

(2) The notices referred to in sub-regulation (1) shall be drawn

up, transmitted by electronic means to the Publications Office of

the European Union and published in accordance with Schedule 11.

(3) The Publications Office of the European Union shall give

the contracting authority or contracting entity confirmation of the

receipt of the notice and of the publication of the information sent,

indicating the date of publication which shall constitute proof of

publication.

(4) Concession notices shall be published in full in one or more

of the official languages of the institutions of the Union as chosen

by the contracting authority or contracting entity. That language

version or those language versions shall constitute the sole

authentic text or texts. A summary of the important elements of

each notice shall be published by the Publications Office of the

European Union in the other official languages of the institutions of

the Union.

(5) Concession notices, concession award notices and adverts

on the Gazette shall not be published at national level before

publication by the Publications Office of the European Union

unless publication at Union level does not take place forty-eight

hours after the Publications Office of the European Union confirms

receipt by the contracting authority or the contracting entity of the

notice as referred to in sub-regulations (2) and (3). Concession

notices, concession award notices and adverts on the Gazette

published at national level shall not contain information other than

that contained in the notices dispatched to the Publications Office

of the European Union but shall indicate the date of dispatch of the

notice to the Publications Office of the European Union.

Part V

Remedies

Remedies before Closing Date of a Call for Competition

Prospective candidates may, one day prior to the closing date

of a call for competition, file a reasoned application before the

Public Contracts Review Board

(a) to set aside or ensure the setting aside of decisions

including clauses contained in the procurement

document and clarification notes taken unlawfully at

this stage or which are proven to be impossible to

perform; or

(b) to determine issues relating to the submission of an

offer through the government’s e-procurement

platform; or

(c) to remove discriminatory technical, economic or

financial specifications which are present in the call

for competition, in the concession documents, in

clarifications notes or in any other document relating

to the contract award procedure; or

(d) to correct errors or to remove ambiguities of a

particular term or clause included in a call for

competition, in the concession documents, in

clarifications notes or in any other document relating

to the concession award procedure; or

(e) to cancel the call for competition on the basis that the

call for competition is in violation of any law or is

likely to violate a particular law if it is continued.

(1) The application by the complainant shall be affixed on

the notice board of the Public Contracts Review Board and shall

also be published on the website of the same board.

(2) The Public Contracts Review Board shall notify the

contracting authority or the contracting entity and the Director

about this request.

(3) It shall be the responsibility of the prospective candidates

to visit the website of the Public Contracts Review Board and be

aware of the latest information published online.

The contracting authority or the contracting entity and any

interested party may, within five days from the date when the

application is uploaded on the website of the Public Contracts

Review Board, file a written reply. Such replies shall also be

affixed to the notice board of the Public Contracts Review Board

and uploaded online.

The Public Contracts Review Board shall decide the

application with urgency after hearing the parties, provided that not

more than one sitting may be fixed for such purpose. The final

decision of the Public Contracts Review Board may be appealed by

the aggrieved party before the Court of Appeal as provided in

regulations 119, 120, 121, 122, 123 and 124.

Pending the decision of the Public Contracts Review Board

the process of the call shall be suspended.

In its final decision the Public Contracts Review Board

must always establish the new deadline for the submission of the

offers.

The contracting authority or the contracting entity shall

abide to the decision of the Public Contracts Review Board in the

shortest time possible and where the contracting authority fails to

implement the decision of the Public Contracts Review Board the

latter may report the matter to the minister responsible for that

contracting authority.

Any application filed in terms of this title shall be without

any charge.

Appeals from Decisions taken after the Closing Date

for the Submission of a Tender

Any tenderer, or any person, having or having had an

interest or who has been harmed or risks being harmed by an

alleged infringement or by any decision taken including a proposed

award in obtaining a contract, a rejection of a tender or a

cancellation of a call for tender after the lapse of the publication

period, may file an appeal by means of an objection before the

Public Contracts Review Board, which shall contain in a very clear

manner the reasons for their complaints.

The objection shall be filed within ten calendar days

following the date on which the contracting authority or the

contracting entity by fax or other electronic means sent its

proposed award decision or the rejection of a tender or the

cancellation of the call for tenders after the lapse of the publication

period.

The communication to each candidate of the proposed

award or of the cancellation of the call shall be accompanied by a

summary of the relevant reasons relating to the rejection of the

tender or the reasons why the call for tenders is being cancelled

after the lapse of the publication period, and by a precise statement

of the exact standstill period.

The objection shall only be valid if accompanied by a

deposit equivalent to 0.50 per cent of the estimated value set by the

contracting authority or the contracting entity of the whole tender

or if the tender is divided into lots according to the estimated value

of the tender set by the contracting authority for each lot submitted

by the tenderer, provided that in no case shall the deposit be less

than four hundred euro (€400) or more than fifty thousand euro

(€50,000) which may be refunded as the Public Contracts Review

Board may decide in its decision.

The Secretary of the Public Contracts Review Board shall

immediately notify the Director and the contracting authority or the

contracting entity that an objection had been filed with his

authority thereby immediately suspending the award procedure.

The contracting authority or the contracting entity shall be

precluded from concluding the concession contract during the

period of ten calendar days allowed for the submission of appeals.

The award process shall be completely suspended if an appeal is

eventually submitted.

The procedure to be followed in submitting and

determining appeals as well as the conditions under which such

appeals may be filed shall be the following

(a) any decision by the Special Contracts Committee or by

the contracting authority or the contracting entity,

shall be made public by affixing it to the notice-board

of the contracting authority or the contracting entity or

by uploading it on government’s e-procurement

platform prior to the award of the contract;

(b) the appeal of the complainant shall also be affixed to

the notice-board of the Public Contracts Review Board

and shall be communicated by fax or by other

electronic means to all participating tenderers;

(c) the contracting authority or the contracting entity and

any interested party may, within ten calendar days

from the day on which the appeal is affixed to the

notice-board of the Department of Contracts or of the

contracting authority or the contracting entity and

uploaded where applicable on the Government’s e-

procurement platform, file a written reply to the

appeal. These replies shall also be affixed to the

notice-board of the Public Contracts Review Board

and where applicable it shall also be uploaded on the

Government’s e-procurement platform;

(d) after the preparatory process is duly completed, the

head of the contracting authority or the contracting

entity shall within ten days forward to the Chairman of

the Public Contracts Review Board all documentation

pertaining to the call for tenders in question including

files, tenders submitted, copies of deposit receipts and

any motivated letter;

(e) the secretary of the board shall inform all the

participants of the call for tenders, and the contracting

authority or the contracting entity of the date or dates

as the case maybe when the appeal will be heard;

(f)

when the oral hearing is concluded, the Public

Contracts Review Board, if it does not deliver the

decision on the same day, shall reserve decision for the

earliest possible date to be fixed for the purpose, but

not later than six weeks from the day of the oral

hearing

Provided that for serious and justified reasons

expressed in writing by means of an order notified to

all the parties, the Public Contracts Review board may

postpone the judgment for a later period;

(g) the secretary of the board shall keep a record of the

grounds of each adjournment and of everything done

in each sitting; and

(h) after evaluating all the evidence and after considering

all submissions put forward by the parties, the Public

Contracts Review Board shall decide whether to

accede or reject the appeal.

Ineffectiveness of a Concession Contract

(1) An interested party or a tenderer may file an

application before the Public Contracts Review Board to declare

that a concession contract with an estimated value which meets or

exceeds the threshold established under Schedule 3 is ineffective.

(2) An interested party may only request the Public Contracts

Review Board to declare a signed concession contract ineffective if

the contracting authority or the contracting entity has awarded a

contract without prior publication of a contract notice in the

O ff i c i a l Jo ur n a l o f t h e E u r o pe a n Un i o n w i th o u t t h is b e in g

permissible in accordance with Directive 2014/23/EC.

(3) Any tenderer may also request the Public Contracts Review

Board to declare a contract ineffective in the following two

instances

(a) when, notwithstanding an appeal is lodged before the

Public Contracts Review Board, a contracting

authority or the contracting entity concludes the

contract before a final decision is given by the Public

Contracts Review Board; or

(b) when the contract is concluded by a contracting

authority or the contracting entity before the expiry of

the period for the filing of an appeal as provided for in

regulation 106.

(4)

The provisions of sub-regulation (2) shall not apply where

(a) the contracting authority or the contracting entity

considers that the award of a contract without prior

publication of a contract notice in the Official Journal

of the European Union is permissible in accordance

with Directive 2014/23/EC;

(b) the contracting authority or the contracting entity has

published in the Official Journal of the European

Union a notice as described in Article 3a of Directive

89/665 expressing its intention to conclude the

contract; and

(c) the contract has not been concluded before the expiry

of a period of at least ten calendar days with effect

from the day following the date of the publication of

this notice.

Apart from the declaration for the ineffectiveness of a

contract the applicant may request the Public Contracts Review

Board to liquidate and order the contracting authority or the

contracting entity to compensate him for actual damages suffered.

The application must be served to the contracting authority

or the contracting entity and to all signatories of the concession

contract, sought to be declared ineffective, who shall have twenty

days to file a reply.

(1) If the Public Contracts Review Board declares a

c o n tr a c t t o b e i n e ff e c t iv e , it sh a l l im po s e pe n a l t ie s o n t h e

contracting authority or the contracting entity after assessing in its

decision all relevant factors, including the seriousness of the

infringement and the behaviour of the contracting authority or the

contracting entity.

(2) The Public Contracts Review Board may not consider a

contract ineffective, even though it has been awarded illegally on

the grounds mentioned in regulation 113, if the Public Contracts

Review Board finds, after having examined all relevant aspects,

that the overriding reasons relating to a general interest require that

the effects of the contract shall be maintained.

The penalties imposed by the Public Contracts Review

Board shall consist of

(a) the imposition of fines on the contracting authority or

the contracting entity, as the case may be, in the

amount of fifteen per cent of the tender value but not

exceeding fifty thousand euro (€50,000); or

(b) the shortening of the duration of the contract

Provided that the award of damages prescribed in

regulation 114 shall not be considered as an appropriate alternative

penalty for the purposes of this regulation.

Applications for the ineffectiveness of a contract shall be

deemed admissible if they are made

(a) before the expiry of at least thirty calendar days with

effect from the day following the date on which

(i)

the contracting authority or the contracting

entity published a contract award notice,

provided that this notice includes justification of

the decision to award the contract without prior

publication of a contract notice in the Official

Journal of the European Union; or

(ii) the contracting authority or the contracting

entity informed the tenderers and candidates

concerned of the conclusion of the contract; and

(b) in any other case before the expiry of a period of at

least six months with effect from the day following the

date of the conclusion of the contract.

Court of Appeal

Any party who feels aggrieved by a decision taken by the

Public Contracts Review Board may appeal to the Court of Appeal

as constituted in accordance with article 41(1) of the Code of

Organization and Civil Procedure by means of an application filed

in the registry of that court within twenty calendar days from the

decision on which that decision has been made public.

The appeal application shall be addressed against the

contracting authority or the contracting entity, the recommended

tenderer, if any, and any other party involved in the proceedings

before the Public Contracts Review Board, who may file a written

reply within twenty days from the date of service

Provided that if the appellant fails to try to serve the appeal

application on all the parties above-mentioned within two weeks of

the filing of the appeal, the Court, after hearing during the first

sitting of the appeal the reasons why service was not effected, may

declare by means of a decree delivered in open court that the appeal

is deserted with expenses to be borne by the appellant.

(1) The Court of Appeal shall set down the cause for

hearing at an early date, in no case later than two months from the

date on which the appeal is brought before it, and shall cause notice

of such date to be given to the parties to the suit who, on their part,

shall assume the responsibility to visit the court registry and be

aware of the latest information regarding the appointment for the

hearing of the case.

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

listening to the oral submissions made by all parties, the Court shall

decide the application on its merits, within the shortest time

possible but not any later than four months from the day when the

appeal had been filed and the parties have been duly notified.

Pending the decision of the Court the process of the call for tenders

shall be suspended.

A contracting authority or the contracting entity may only

refer a matter to the Court of Appeal in relation to a decision taken

by the Public Contracts Review Board relating to the

ineffectiveness of a concession contract, penalties and the award of

damages.

If, during the hearing of the appeal, the Court finds that the

application is frivolous and vexatious, the Court may impose on the

party so guilty a penalty, to be paid to the contracting authority or

the contracting entity, of between one thousand euro (€1,000) and

five thousand euro (€5,000).

The Court may, for serious and necessary reasons, by

means of a decree, extend for a reasonable period the judicial time-

limits referred to in this Part.

No application for a re-trial from a decision of the Court of

Appeal may be made if, after the final decision has been given, the

concession contract has been signed between the contracting

authority or the contracting entity and the recommended tenderer

and no request for the suspension of the execution of the decision

has been made.

CONCESSION CONTRACTS

Schedule 1

Amended by

XXVIII.2018.44;

List of contracting authorities

XVII.2024.35;

L.N. 112 of 2024.

Office of the Prime Minister/Permanent Secretary’s Office/Department of

Corporate Services

Ministry for European Affairs and Implementation of the Electoral

Manifesto/Permanent Secretary’s Office/Department of Corporate Services

Ministry for Foreign Affairs/Permanent Secretary’s Office/Department of

Corporate Services

Ministry for Education and Employment/Permanent Secretary’s Office/

Operations Department

Ministry for Transport and Infrastructure/Permanent Secretary’s Office/

Department of Corporate Services

Ministry for Gozo/Permanent Secretary’s Office/Department of Corporate

Services

Ministry for Social Dialogue, Consumer Affairs and Civil Liberties/

Permanent Secretary’s Office/Department of Corporate Services

Ministry for the Economy, Investment and Small Business/Permanent

Secretary’s Office/Department of Corporate Services

Ministry for Finance/Permanent Secretary’s Office/Department of Corporate

Services

Ministry for the Family and Social Solidarity/Permanent Secretary’s Office/

Department of Corporate Services

Ministry for Justice, Culture and Local Government/Permanent Secretary’s

Office/Department of Corporate Services

Ministry for Tourism/Permanent

Secretary’s

Office/Department

of

Corporate Services

Ministry for Home Affairs and National Security/Permanent Secretary’s

Office/Department of Corporate Services

Ministry for Sustainable Development, the Environment and Climate

Change/Permanent Secretary’s Office/Department of Corporate Services

Ministry for Competitiveness and Digital, Maritime and Services Economy/

Permanent Secretary’s Office/Department of Corporate Services

Ministry for Health/Permanent Secretary’s Office/Department of Corporate

Services

Malta Standards Authority

Broadcasting Authority

Centre for Development, Research and Training

Internal Audit and Investigations Directorate

EuroMedITI Ltd

CONCESSION CONTRACTS

•

Armed Forces of Malta

•

Industrial Projects and Services Ltd

•

Public Service Commission

•

Government Printing Press

•

Electoral Office

•

Mediterranean Academy for Diplomatic Studies

•

International Institute on Ageing

•

Planning and Priorities Co-ordination Division

•

Funds and Programme Division

•

Malta Information Technology Agency (MITA)

•

Malta Communications Authority

•

Grand Harbour Regeneration Corporation p.l.c.

•

Malta Government Technology Investments Limited (MGTIL)

•

Transport Malta

•

Paying Agency

•

Regulator for Energy and Water Services

•

Building and Engineering

•

Construction and Maintenance

•

EU Affairs Department

•

Cleansing and Maintenance Department

•

Building Construction Industry Department

•

Financial Management Department

•

Project Design and Implementation Department

•

Agriculture and Fisheries Regulation Department

•

Strategy and Support Division

•

Services Division

•

Building Industry Consultative Council

•

Manufacturing and Services

•

Fisheries Control

•

Food and Veterinary Services

•

Oil Exploration

•

WasteServ Malta Ltd.

•

Rural Development and Aquaculture

•

European Union Programmes Agency

•

National Archives

•

Department of Regulatory Compliance

•

Directorate for EU and International Affairs

CONCESSION CONTRACTS

•

Examinations

•

Foundation for Tomorrow’s Schools

•

Foundation for Educational Services

•

Fondazzjoni Patrimonju Malti

•

Institute for Tourism Studies

•

Junior College

•

Jobsplus

•

Malta College of Arts, Science and Technology

•

National Commission for Higher Education

•

Maltese National Commission for UNESCO

•

SportMalta

•

Malta Libraries

•

Public Broadcasting Services Ltd.

•

University of Malta

•

Lotteries and Gaming Authority

•

Malta Statistics Authority

•

Malta Financial Services Authority

•

Malta Stock Exchange

•

Customs Department

•

Contracts Department

•

Lotteries Department

•

Inland Revenue Department

•

Treasury Department

•

Economic Policy Division

•

VAT Division

•

Gozo Channel (Operations) Ltd.

•

Financial Intelligence Analysis Unit

•

Enemalta p.l.c.

•

Water Services Corporation

•

Malta Air Traffic Services Ltd. (MATS)

•

Malta Enterprise

•

INDIS Malta Ltd.

•

MGI/MIMCOL

•

Tax Compliance Unit

•

Collective Bargaining Unit

•

Privatisation Unit

•

Capital Transfer Duty

CONCESSION CONTRACTS

•

Local Government Department

•

Police Department

•

Local Councils

•

Agency for the Welfare of Asylum Seekers (AWAS)

•

Civil Protection

•

Civil Registration

•

Public Registry

•

Land Registry

•

Correctional Services

•

Elderly and Community Care

•

Occupational Health and Safety Authority

•

National Blood Transfusion Centre

•

Foundation for Medical Services

•

Health

•

Mater Dei Hospital

•

Mount Carmel Hospital

•

Zammit Clapp Hospital

•

Malta Tourism Authority

•

Environment and Resources Authority

•

Planning Authority

•

Mediterranean Conference Centre

•

St James Cavalier Creativity Centre

•

Hertitage Malta

•

National Council for Culture and the Arts

•

National Orchestra Ltd

•

Superintendence of Cultural Heritage

•

Manoel Theatre

•

Aċċess

•

Appoġġ

•

Attorney General

•

Identity Malta

•

National Employment Authority

•

Housing Authority

•

Malta Arbitration Centre

•

Foundation for Social Welfare Services

•

Benefit Fraud and Investigations

•

Judicial

CONCESSION CONTRACTS

Welfare Committee

Data Protection Commission

Commission on Domestic Violence

Commission for the Promotion of Equality for Men and Women

National Commission on the abuse of drugs, alcohol and other dependencies

National Commission for Persons with Disability

National Commission for the Family

Malta Council for Economic and Social Development

Industrial and Employment Relations

Sapport

Sedqa

Social Security

Social Welfare Standards

Office of the Commissioner for Voluntary Organisations

Office of the Commissioner for Children

Medicines Authority

Cooperatives Board

Consumer and Competitive Division

Commerce Division

Malta National Laboratory

Notary to Government

Government Property Division

Joint Office

Projects Malta Ltd

Central Procurement Supplies Unit

Employment Commission

Aġenzija Żgħażagħ

National Literacy Agency

Institute for Education

Infrastructure Malta

CONCESSION CONTRACTS

Schedule 2

List of the Activities referred to in the definition

of Execution of Works

(Regulation 2)

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division Group

Class Subject

Notes

Construction

This division inclu des: 45000000

construction of new

buildings and works,

restoring and common

repairs.

45.1

Site preparation

45100000

45.11

This class includes

45110000

-

demolition

of

buildings and other

structures,

-

clearing

of

building sites,

-

earth

moving

excavation, landfill,

levelling and grading of

construction sites, trench

digging, rock removal,

blasting, etc.,

-

site preparation

for mining,

-

overburden

removal and other

development

and

preparation of mineral

properties and sites.

This class also includes

-

building

site

drainage,

-

drainage

of

agricultural or forestry

land.

CONCESSION CONTRACTS

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division Group

Class Subject

Notes

45.12 Test drilling and This class includes

45120000

boring

-

test drilling, test

boring and core sampling

for

construction,

geophysical, geological or

similar purposes.

This class excludes

-

drilling

of

production oil or gas

wells, see 11.20,

-

water

well

drilling, see 45.25,

-

shaft sinking, see

45.25,

-

oil and gas field

exploration, geophysical,

geological and seismic

surveying, see 74.20.

45.2

Building

of

45200000

complete

constructions or

parts thereof;

civil engineering

CONCESSION CONTRACTS

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division Group

Class Subject

Notes

45.21 G e n e r a l

This class includes

45210000

construction of -

construction of Except

buildings and all types of buildings

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

45213316

works

engineering constructions, 4 5 2 2 0 0 0 0

45231000

-

bridges,

i n c l u d i n g t h o s e f o r 45232000

elevated

highways,

viaducts, tunnels and

subways,

-

long-distance

pipelines, communication

and power lines,

-

urban pipelines,

urban communication and

power lines,

-

ancillary urban

works,

-

assembly

and

erection of prefabricated

constructions on the site.

This class excludes

-

service activities

incidental to oil and gas

extraction, see 11.20,

-

erection

of

c o m p l e t e p r e f a b ri c a t e d

constructions from self-

manufactured parts not of

concrete, see divisions 20,

26 and 28,

-

construction

work,

other

than

buildings, for stadiums,

swimming

pools,

gymnasiums, tennis

courts, golf courses and

other sports installations,

see 45.23,

-

building instal-

lation, see 45.3,

-

building

com-

pletion, see 45.4,

-

architectural and

engineering activities, see

74.20,

-

project manage-

ment for construction, see

74.20.

CONCESSION CONTRACTS

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division Group

Class Subject

Notes

45.22 Erection of roof This class includes

45261000

covering and

frames

-

erection of roofs,

-

roof covering,

-

waterproofing.

45.23 Construction of This class includes

45212212

highways, roads, -

and

DA03

construction of

a i r f i e l d s a n d highways, streets, roads, 45230000

sport facilities

o t h e r v e h i c u l a r a n d except

pedestrian ways,

- 45231000

-

construction of

- 45232000

railways,

construction of - 45234115

-

airfield runways,

-

construction

work,

other

than

buildings, for stadiums,

swimming

pools,

gymnasiums, tennis

courts, golf courses and

other sports installations,

-

painting

of

markings on road surfaces

and car parks.

This class excludes

-

preliminary earth

moving, see 45.11.

45.24 Construction of T h i s c l a s s i n c l u d e s 45240000

water projects

construction of

-

waterways,

harbour and river works,

pleasure ports (marinas),

locks, etc.,

-

dams and dykes,

-

dredging,

-

subsurface work.

CONCESSION CONTRACTS

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division Group

Class Subject

Notes

45250000

45.25 O t h e r

This class includes

construction -

45262000

construction

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

special trades

one aspect common to

different kinds of

structures, requiring

specialised skill or

equipment,

-

construction of

foundations, including

pile driving,

-

water

well

drilling and construction,

shaft sinking,

-

erection of non-

self-manufactured steel

elements,

-

steel bending,

-

bricklaying and

stone setting,

-

scaffolds

and

w o r k p l at f o r m e r e c t in g

and

dismantling,

including renting of

scaffolds and work

platforms,

-

erection

of

chimneys and industrial

ovens.

This class excludes

-

renting

of

scaffolds without erection

and dismantling, see

71.32.

45.3

Building

45300000

installation

CONCESSION CONTRACTS

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division Group

Class Subject

Notes

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

45213316

electrical wiring installation in buildings or 45310000

and fittings

other

c o n s t r u c t i o n Except

projects of

- 45316000

-

electrical wiring

and fittings,

-

telecommunica-

tions systems,

-

electrical heating

systems,

-

residential

antennas and aerials,

-

fire alarms,

-

burglar

alarm

systems,

-

lifts

and

escalators,

-

lightning conduc-

tors, etc.

45.32 Insulation work This class includes

45320000

activities

-

installation

in

buildings or other

construction projects of

thermal, sound or

vibration insulation.

This class excludes

-

waterproofing,

see 45.22.

45.33 Plumbing

This class includes

45330000

-

installation

in

buildings or other

construction projects of

-

plumbing

and

sanitary equipment,

-

gas fittings,

-

heating,

ventilation, refrigeration

or

air-conditioning

equipment and ducts,

-

sprinkler

systems.

This class excludes

-

installation

of

electrical heating systems,

see 45.31.

CONCESSION CONTRACTS

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division Group

Class Subject

Notes

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

45234115

installation

of 45316000

- installation

a n d 45340000

illumination

signalling systems for

roads, railways, airports

and harbours,

- installation

in

buildings or other

construction projects of

fittings and fixtures n.e.c.

45.4

Building

45400000

completion

45.41 Plastering

This class includes

45410000

- application

in

buildings or other

construction projects of

interior and exterior

plaster

or

stucco,

including related lathing

materials.

45.42 J o i n e r y

This class includes

45420000

installation

- installation of not

self-manufactured doors,

windows, door and

window frames, fitted

kitchens, staircases, shop

fittings and the like, of

wood or other materials,

- interior

completion

such as ceilings, wooden

wall coverings, movable

partitions, etc.

This class excludes

- laying of parquet and

other

wood

floor

coverings, see 45.43.

CONCESSION CONTRACTS

NACE Rev 1

CPV code

Section F

CONSTRUCTION

Division Group

Class Subject

Notes

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

45430000

covering

- laying, tiling, hanging

or fitting in buildings or

other

construction

projects of

- ceramic, concrete or

cut stone wall or floor

tiles,

- parquet and other

wood floor coverings

carpets and linoleum floor

coverings,

- including of rubber or

plastic,

- terrazzo,

marble,

granite or slate floor or

wall coverings,

- wallpaper.

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

45440000

glazing

- interior and exterior

painting of buildings,

- painting

of

civil

engineering structures,

- installation of glass,

mirrors, etc.

This class excludes

- installation

of

windows, see 45.42.

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

45212212

completion

- installation of private a n d D A 0 4

45450000

swimming pools,

- steam cleaning, sand

blasting and similar

activities for building

exteriors,

- other

building

completion and finishing

work n.e.c.

This class excludes

- interior cleaning of

buildings and other

structures, see 74.70.

45.5

Renting

of

45500000

construction or

demolition

equipment with

operator

NACE Rev 1

CPV code

CONSTRUCTION

Class Subject

Notes

45.50

This class excludes

45500000

- renting

of

construction or demolition

machinery and equipment

without operators, see

71.32.

1 Council Regulation (EEC) No 3037/90 of 9 October 1990 on the statistical

classification of economic activities in the European Community

Schedule 3

Values of thresholds

(Regulation 57)

The values of the thresholds applicable to Public Contracts is as follows net of

Value Added Tax

€5,538,000 for both works and service concession

Schedule 4

Activities exercised by Contracting Entities

The provisions of these regulations governing concessions awarded by contracting

entities shall apply to the following activities

1. As far as gas and heat are concerned

(a) the provision or operation of fixed networks intended to provide a

service to the public in connection with the production, transport or

distribution of gas or heat;

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

The supply by a contracting entity, as defined under regulations 2(2)(b)

and (c), of gas or heat to fixed networks which provide a service to the

public shall not be considered to be a relevant activity within the

meaning of paragraph 1 where all of the following conditions are met

(i)

the production of gas or heat by that contracting entity is the

unavoidable consequence of carrying out an activity other than

those referred to in this sub-paragraph or in paragraphs 2 and 3 of

this Schedule;

(ii) the supply to the public network is aimed only at the economic

exploitation of such production and amounts to not more than

twenty per cent of that contracting entity’s turnover on the basis

of the average for the preceding three years, including the current

year.

CONCESSION CONTRACTS

For the purposes of these regulations, ‘supply’ includes the generation/production,

wholesale and retail sale of gas. However, production of gas in the form of

extraction falls within the scope of paragraph 4 of this Schedule.

2. As far as electricity is concerned

(a) the provision or operation of fixed networks intended to provide a

service to the public in connection with the production, transport or

distribution of electricity;

(b) the supply of electricity to such fixed networks.

For the purposes of these regulations, supply of electricity includes

generation/production, wholesale and retail sale of electricity.

The supply by a contracting entity referred to in paragraphs (b) and (c) of the

definition of the term "contracting entity" under regulation 2(2) of electricity to

networks which provide a service to the public shall not be considered to be a

relevant activity within the meaning of paragraph 1 of this schedule where all of the

following conditions are met

(a) the production of electricity by that contracting entity takes place

because its consumption is necessary for carrying out an activity other

than those referred to in this sub-paragraph or in paragraphs 1 and 3 of

this Schedule;

(b) supply to the public network depends only on that contracting entity’s

own consumption and has not exceeded thirty per cent of that

contracting entity’s total production of energy, on the basis of the

average for the preceding three years, including the current year.

3. Activities relating to the provision or operation of networks providing a

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

tramway, trolley bus, bus or cable.

As regards transport services, a network shall be considered to exist where the

service is provided under operating conditions laid down by a competent authority,

such as conditions on the routes to be served, the capacity to be made available or

the frequency of the service.

4. Activities relating to the exploitation of a geographical area for the purpose

of the provision of airports and maritime or inland ports or other terminal facilities

to carriers by air, sea or inland waterway.

5. Activities relating to the provision of

(a) postal services;

(b) other services than postal services, on condition that such services are

provided by an entity which also provides postal services within the

meaning of sub-paragraph (ii) and provided that the conditions set out

in regulation 27 of the Public Procurement of Entities operating in

Water, Energy, Transport and Postal Services Sectors Regulations are

not satisfied in respect of the services falling within sub-paragraph (ii).

For the purpose of these regulations and without prejudice to relevant legislation

transposing Directive 97/67/EC

(i)

‘postal item’ means an item addressed in the final form in which

it is to be carried, irrespective of weight. In addition to items of

correspondence, such items also include for instance books,

catalogues, newspapers, periodicals and postal packages

containing merchandise with or without commercial value,

irrespective of weight;

(ii)

‘postal services’ means services consisting of the clearance,

sorting, routing and delivery of postal items. This shall include

both services falling within as well as services falling outside the

scope of the universal service set up in conformity with the

legislation transposing Directive 97/67/EC;

(iii) ‘other services than postal services’ means services provided in

the following areas

-

mail service management services (services both preceding

and subsequent to despatch, including ‘mailroom

management services’),

-

services concerning postal items not included in sub-

paragraph (a), such as direct mail bearing no address.

6. Activities relating to the exploitation of a geographical area for the purpose

(a) extracting oil or gas;

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

Schedule 5

List of legal acts of the union referred to in sub-paragraph (ii)

of the proviso to the definition of the term contracting entity

[Regulation 2(2)]

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

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

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

of these regulations. The following lists procedures, ensuring adequate prior

transparency, for granting authorisations on the basis of other legislative acts of the

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

these regulations

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

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

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

electricity production installations in accordance with Directive 2009/

72/EC;

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

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

which is not or shall not be reserved;

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

involving the exploitation of hydrocarbons in accordance with Directive

94/22/EC;

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

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

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

competitive tendering procedure in accordance with its Article 5(3),

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

Regulation.

CONCESSION CONTRACTS

Schedule 6

Services referred

[Regulation 8(2)]

Description

7 9 6 11 0 0 0 - 0 ; 7 5 2 0 0 0 0 0 - 8 ; 7 5 2 3 1 2 0 0 - 6 ; 7 5 2 3 1 2 4 0 - 8 ; H e a l t h , s o c i a l a n d

79622000-0 [Supply services of domestic help personnel]; related services

79624000-4 [Supply services of nursing personnel] and

79625000-1 [Supply services of medical personnel] from

85000000-9 to 85323000-9; 85143000-3,

98133100-5, 98133000-4 and 98200000-5 and 98500000-8

[Private households with employed persons] and 98513000-2

to 98514000-9 [Manpower services for households, Agency

staff services for households, Clerical staff services for

households, Temporary staff for households, Home-help

services and Domestic services]

85321000-5 and 85322000-2, 75000000-6 [Administration, Administrative, social,

defence and social security services], 75121000-0, 75122000- educational, healthcare

7 , 7 5 1 2 4 0 0 0 - 1 ; f r o m 7 9 9 9 5 0 0 0 - 5 t o 7 9 9 9 5 2 0 0 - 7 ; f r o m and cultural services

80000000-4 Education and training services to 80660000-8;

from 92000000-1 to 92342200-2; from 92360000-2 to

92700000-8;

79950000-8 [Exhibition, fair and congress organisation

services], 79951000-5 [Seminar organisation services],

79952000-2 [Event services], 79952100-3 [Cultural event

organisation services], 79953000-9 [Festival organisation

services], 79954000-6 [Party organisation services],

79955000-3[Fashion shows organisation services], 79956000-0

[Fair and exhibition organisation services]

75300000-9

Compulsory social

security

provided that these

services are not covered

by these regulations

where

organised as non-

e c o n om i c se r v i c e s o f

general interest. A

contracting authority is

free to organise the

provision

compulsory social

services or of other

services as services of

gen eral interest or as

non-

services of general

interest.

7 5 3 1 0 0 0 0 - 2 , 7 5 3 11 0 0 0 - 9 , 7 5 3 1 2 0 0 0 - 6 , 7 5 3 1 3 0 0 0 - 3 , Benefit services

75313100-4, 75314000-0, 75320000-5, 75330000-8,

75340000-1

CONCESSION CONTRACTS

Description

98000000-3; 98120000-0; 98132000-7; 98133110-8 and O t h e r c o m m u n i t y,

98130000-3

social and personal

services including

services furnished by

trade unions, political

organisations, youth

associations and other

membership

organisation services.

98131000-0

Religious services

55100000-1 to 55410000-7; 55521000-8 to 55521200-0 H o t e l a n d r e s t a u r a n t

[ 55 5 2 1 00 0 - 8 C a t er in g s e r v i c e s f o r pr iv a t e h o u s e h o ld s , services

55521100-9 Meals-on-wheels services, 55521200-0 Meal

delivery service]. 55520000-1 Catering services, 55522000-5

Catering services for transport enterprises, 55523000-2

Catering services for other enterprises or other institutions,

55524000-9 School catering services 55510000-8 Canteen

services, 55511000-5 Canteen and other restricted-clientele

cafeteria services, 55512000-2 Canteen management services,

55523100-3 School-meal services

79100000-5 to 79140000-7; 75231100-5

Legal services, to the

extent not excluded

pursuant to regulation

5(1)(m)(i) to (v)

75100000-7 to 75120000-3; 75123000-4; 75125000-8 to O t h e r a d m i n i s t r a t i v e

75131000-3

services

government services

75200000-8 to 75231000-4

Provision of services to

the community

75231210-9 to 75231230-5; 75240000-0 to 75252000-7; Prison related services,

794300000-7; 98113100-9

public security and

rescue services, to the

extent not excluded

pursuant to regulation

5(1)(p)

7 9 7 0 00 0 0 - 1 t o 7 9 7 21 0 0 0 - 4 [ I n v e s t i g a ti o n a n d s e c u r i t y I n v e s t i g a t i o n

services, Security services, Alarm-monitoring services, Guard security services

services, Surveillance services, Tracing system services,

Absconder-tracing services, Patrol services, Identification

badge release services, Investigation services and Detective

agency services] 79722000-1[Graphology services],

79723000-8 [Waste analysis services]

6 4 00 0 0 00 - 6 [ P o s ta l an d te l e co m m un i c a ti o ns se r vi c e s ] , Postal Services

64100000-7 [Post and courier services], 64110000-0 [Postal

services], 64111000-7 [Postal services related to newspapers

and periodicals], 64112000-4 [Postal services related to

letters], 64113000-1 [Postal services related to parcels],

64114000-8 [Post office counte r serv ic es], 64 115000-5

[ M a i l bo x r e n t a l ] , 6 4 11 60 0 0 - 2 [ P o s t - r e s t a n te se r v ic e s ] ,

64122000-7 [Internal office mail and messenger services]

5 0 11 6 5 1 0 - 9 [ Ty r e - r e m o u l d i n g s e r v i c e s ] , 7 1 5 5 0 0 0 0 - 8 Miscellaneous services

[Blacksmith services]

9 8 9 0 0 0 0 0 - 2 [ S e r v i c e s p r o v i d e d b y e x t r a - t e r r i t o r i a l International services

organisations and bodies] and 98910000-5 [Services specific to

international organisations and bodies]

CONCESSION CONTRACTS

Schedule 7

Information to be included in Concession Notices

(Regulation 95)

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

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

the contracting authority or entity and, where different, of the service from which

additional information may be obtained.

2. Type of contracting authority or entity and main activity exercised.

3. If the applications are to contain tenders, e-mail or internet address at which

the concession documents will be available for unrestricted and full direct access,

free of charge. Where unrestricted and full direct access, free of charge, is not

available in the cases referred to in regulation 76(4) an indication of how the

procurement documents can be accessed.

4. Description of the concession: nature and extent of works, nature and extent

of services, order of magnitude or indicative value and, where possible, duration of

the contract. Where the concession is divided into lots, this information shall be

provided for each lot. Where appropriate, description of any options.

5. CPV codes. Where the concession is divided into lots, this information shall

be provided for each lot.

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

NUTS code for the main place of performance service concessions; where the

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

7. Conditions for participation, including

(a) where appropriate, indication whether the concession is restricted to

sheltered workshops, or whether its execution is restricted to the

framework of protected job programmes;

(b) where appropriate, indication whether the provision of the service is

reserved by law, regulation or administrative provision to a particular

profession; reference to the relevant law, regulation or administrative

provision;

(c) a list and brief description of selection criteria where applicable;

minimum level(s) of standards possibly required; indication of required

information (self-declarations, documentation).

8. Time limit for the submission of applications or receipt of tenders.

9. Criteria which will be applied in the award of the concession where they do

not appear in other concession documents.

10. Date of dispatch of the notice.

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

appropriate, mediation procedures. Precise information concerning the deadline for

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

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

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

concession is subject.

13. Address where applications or tenders shall be transmitted.

14. Where appropriate, indication of requirements and conditions related to the

use of electronic means of communication.

15. Information as to whether the concession is related to a project and/or

programme financed by Union funds.

16. For works concessions, indication as to whether the concession is covered

by the GPA.

Schedule 8

Information to be included in Prior Information Notices concerning Concessions for

Social and Other Specific Services

[Regulation 95(3)]

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

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

the contracting authority or contracting entity and, where different, of the service

from which additional information may be obtained.

2. Where appropriate, e-mail or internet address at which the specifications and

any supporting documents will be available.

3. Type of contracting authority or contracting entity and main activity

exercised.

4. CPV codes; where the contract is divided into lots, this information shall be

provided for each lot.

5. NUTS code for the main place of delivery or performance of service

concessions.

6. Description of the services, indicative order of magnitude or value.

7. Conditions for participation.

8. Where applicable, time limit(s) for contacting the contracting authority or

contracting entity in view of participation.

9. Where applicable, brief description of the main features of the award

procedure to be applied.

10. Any other relevant information.

CONCESSION CONTRACTS

Schedule 9

Information to be included in Concession Award Notices

(Regulation 96)

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

address including NUTS code and, where appropriate, telephone, fax number, e-mail

and internet address of the contracting authority or entity and, where different, of the

service from which additional information may be obtained.

2. Type of contracting authority or entity and main activity exercised.

3. CPV codes.

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

NUTS code for the main place of performance in case of service concessions.

5. Description of the concession: nature and extent of works, nature and extent

of services, duration of the contract. Where the concession is divided into lots, this

information shall be provided for each lot. Where appropriate, description of any

options.

6. Description of award procedure used; in the case of award without prior

publication, justification.

7. Criteria referred to in regulation 79 which were used for award of the

concession or concessions.

8. Date of concession award decision or decisions.

9. Number of tenders received with respect of each award, including

(a) number of tenders received from economic operators which are small

and medium enterprises;

(b) number of tenders received from abroad;

(c) number of tenders received electronically.

10. For each award, name, address including NUTS code and, where applicable,

telephone, fax number, e-mail address and internet address of the successful

tenderer(s) including

(a) information whether the successful tenderer is small and medium

enterprise;

(b) information whether the concession was awarded to a consortium.

11. Value and main financial terms of the awarded concession, including

(a) fees prices and fines if any;

(b) prizes and payments if any;

(c) any other details relevant to the value of the concession as laid down in

regulation 55(1).

12. Information whether the concession is related to a project and/or programme

CONCESSION CONTRACTS

financed by Union funds.

13. Name and address of the body responsible for review and, where

appropriate, mediation procedures. Precise information concerning the deadline for

review procedures, or if need be, the name, address, telephone number, fax number

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

14. Date(s) and reference(s) of previous publications in the Official Journal of

the European Union relevant to the concession(s) advertised in this notice.

15. Date of dispatch of the notice.

16. Method used to calculate the estimated value of the concession, if not

specified in other concession documents in accordance with regulations 53 to 56.

17. Any other relevant information.

Schedule 10

Information to be included in Concession Award Notices

concerning Concessions for Social and Other Specific Services

(Regulation 96)

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

address including NUTS code, where applicable, telephone, fax number, e-mail and

internet address of the contracting authority or entity and, where different, of the

service from which additional information may be obtained.

2. Type of contracting authority or entity and main activity exercised.

3. CPV codes; where the contract is divided into lots, this information shall be

provided for each lot.

4. Summary indication of the subject of the concession.

5. Number of tenders received.

6. Value of the successful tender, including fees and prices.

7. Name and address including NUTS code, telephone, fax number, e-mail

address and internet address of the successful economic operator(s).

8. Any other relevant information.

Schedule 11

Features concerning Publication

Publication of notices

1. The notices referred to in regulations 95 and 96 shall be sent by the

contracting authorities or contracting entities to the Publications Office of the

European Union and published in accordance with the following rules

-

Notices referred to in regulations 95 and 96 shall be published by the

Publications Office of the European Union

-

The Publications Office of the European Union shall give the

contracting authority or entity the confirmation referred to in regulation

CONCESSION CONTRACTS

97(2) and (3).

2. Format and procedures for sending notices electronically.

The format and procedure for sending notices electronically as established by the

Commission are made accessible at the internet address ‘http://simap.europa.eu.’EN.

Schedule 12

List of International Social and Environmental Conventions

(Regulation 16)

ILO Convention 87 on Freedom of Association and the Protection of the Right to

Organise;

ILO Convention 98 on the Right to Organise and Collective Bargaining;

ILO Convention 29 on Forced Labour;

ILO Convention 105 on the Abolition of Forced Labour;

ILO Convention 138 on Minimum Age;

ILO Convention 111 on Discrimination (Employment and Occupation);

ILO Convention 100 on Equal Remuneration;

ILO Convention 182 on Worst Forms of Child Labour;

Vienna Convention for the protection of the Ozone Layer and its Montreal

Protocol on substances that deplete the Ozone Layer;

Basel Convention on the Control of Transboundary Movements of Hazardous

Wastes and their Disposal (Basel Convention);

Stockholm Convention on Persistent Organic Pollutants (Stockholm POPs

Convention);

Convention on the Prior Informed Consent Procedure for Certain Hazardous

Chemicals and Pesticides in International Trade (UNEP/FAO) (PIC Convention)

and its 3 regional Protocols.

Schedule 13

Information to be included in Notices of Modifications of a

Concession during its term

(Regulation 85)

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

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

the contracting authority or entity and, where different, of the service from which

additional information may be obtained.

2. CPV codes.

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

NUTS code for the main place of performance in service concessions.

4. Description of the concession before and after the modification: nature and

extent of the works, nature and extent of services.

CONCESSION CONTRACTS

5. Where applicable, modification of value of the concession, including

increase in prices or fees caused by the modification.

6. Description of the circumstances which have rendered necessary the

modification.

7. Date of concession award decision.

8. Where applicable, the name, address including NUTS code telephone, fax

number, e-mail address and internet address of the new economic operator or

operators.

9. Information whether the concession is related to a project and/or programme

financed by Union funds.

10. Name and address of the body responsible for review and, where

appropriate, mediation procedures. Precise information concerning the deadline for

review procedures, or if need be, the name, address, telephone number, fax number

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

11. Date(s) and reference(s) of previous publications in the Official Journal of

the European Union relevant to the contract(s) concerned by this notice.

12. Date of dispatch of the notice.

13. Any other relevant information.