L.S. 601.05 Regolamenti dwar Akkwist Pubbliku ta’ Entitajiet li joperaw fis-Setturi tas-Servizzi tal-Ilma, l-Enerġija, it-Trasport u Postali

(1)Interpretation and Scope For the purposes of these regulations: "ancillary purchasing activities" means activities consisting in the provision of support to purchasing activities, in particular in the following forms: Definitions. Amended by: L.N. 26 of 2018 (

1. a)technical infrastructure enabling contracting authorities to award public contracts or to conclude framework agreements for works, supplies or services; (
2. b)advice on the conduct or design of public procurement procedures; (
3. c)preparation and management of procurement procedures on behalf and for the account of the contracting authority concerned; "black listed person" shall have the same meaning as that given in the Public Procurement Regulations; "bodies governed by public law" means bodies that have all of the following characteristics: (
4. a)they are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character; (
5. b)they have legal personality; and (
6. c)they are financed, for the most part, by the State, regional or local authorities, or by other bodies governed by public law; or are subject to management supervision by those authorities or bodies; or have an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law; "candidate" means an economic operator that has sought an invitation or has been invited to take part in a restricted procedure, in a competitive procedure with negotiation, in a negotiated procedure without prior publication, in a competitive dialogue or in an innovation partnership; "central purchasing body" means a contracting entity providing centralised purchasing activities and, possibly, ancillary purchasing activities: Provided that procurement carried out by a central purchasing body in order to perform centralised purchasing activities shall be deemed to be procurement for the pursuit of an activity as described in regulations 7 to 13. Regulation 15 shall not apply to procurement carried out by a central purchasing body in S.L. 601.03 3 4 [ S.L.601.05 PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS order to perform centralised purchasing activities; "centralised purchasing activities" means activities conducted on a permanent basis, in one of the following forms: (
7. a)the acquisition of supplies and, or services intended for contracting authorities; (
8. b)the award of public contracts or the conclusion of framework agreements for works, supplies or services intended for contracting authorities; "Commission" means the Commission of the European Union; "common technical specification" means a technical specification in the field of ICT laid down in accordance with Articles 13 and 14 of Regulation (EU) 1025/2012; "conflicts of interest" shall at least mean any situation where staff members of the contracting authority or of a procurement service provider acting on behalf of the contracting authority who are involved in the conduct of the procurement procedure or may influence the outcome of that procedure have, directly or indirectly, a financial, economic or other personal interest which might be perceived to compromise their impartiality and independence in the context of the procurement procedure; "Conformity Assessment Body" shall be a body that performs conformity assessment activities including calibration, testing, c e r ti f i c a t i o n a nd i n s pe c ti o n a c c r e d i t e d in a c c o r d a n c e w i t h Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products; "contract award notice" means a notice to be published in the Official Journal of the European Union; "contract notice" means a notice to be published in the Official Journal of the European Union; " c o n t r a c t i n g a u t h o r i t i e s " m e a n s St a t e , r e g i o n a l o r l o c a l authorities, bodies governed by public law or associations formed by one or more such authorities or one or more such bodies governed by public law; "Contracts Committees" means the General Contracts Committee and, or the Special Contracts Committee; "CPV" means the Common Procurement Vocabulary as adopted by Regulation (EC) No. 2195/2002, as amended from time to time; "departmental tender" means tenders issued by contracting authorities with an estimated value which falls under the threshold established under regulation 30

(1)(a); "design contests" means those procedures which enable the contracting authority to acquire, mainly in the fields of town and country planning, architecture and engineering or data processing, a plan or design selected by a jury after being put out to competition with or without the award of prizes; PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS [ S.L.601.05 "direct contracts" means contracts awarded without recourse to a prior call for competition; "Director" means the Director of Contracts who heads the Department of Contracts; "economic operator" means any natural or legal person or public entity or group of such persons and, or entities, including any temporary association of undertakings; "electronic means" means electronic equipment for the processing (including digital compression) and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means; "E u r o p e a n t e ch n i ca l a s se ss m e n t " m e a n s t h e d o cu m e n t ed assessment of the performance of a construction product, in relation to its essential characteristics, in accordance with the respective European Assessment Document, as defined in point 12 of Article 2 of Regulation (EU) No 305/2011 of the European Parliament and of the Council; "Evaluation Committee" means boards or committees appointed by contracting authorities with the purpose of evaluating tenders received and for making recommendations thereon; "framework agreement" means an agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the terms governing contracts to be awarded during a given period, in particular with regard to price and, where appropriate, the quantity envisaged; "government’s e-procurement platform" means the electronic platform for procurement as established by the Director; "ineffectiveness" shall have the same meaning as that given under the Public Procurement Regulations; "innovation" means the implementation of a new or significantly improved product, service or process, including but not limited to production, building or construction processes, a new marketing method, or a new organisational method in business practices, workplace organisation or external relations inter alia with the purpose of helping to solve societal challenges or to support the Europe 2020 strategy for smart, sustainable and inclusive growth; "irregular tenders" means tenders which do not comply with the procurement documents, which were received late, where there is evidence of collusion or corruption, or which have been found by the contracting entity to be abnormally low; "label" means any document, certificate or attestation confirming that the works, products, services, processes or procedures in question meet certain requirements; "label requirements" means the requirements to be met by the works, products, services, processes or procedures in question in order to obtain the label concerned; "life cycle" means all consecutive and, or interlinked stages, including research and development to be carried out, production, S.L. 601.03 5 6 [ S.L.601.05 PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS trading and its conditions, transport, use and m aintenance, throughout the existence of the product or the works or the provision of the service, from raw material acquisition or generation of resources to disposal, clearance and end of service or utilisation; "local authorities" includes all authorities of the administrative units falling under NUTS 3 and smaller administrative units, as referred to in Regulation (EC) No 1059/2003; "Member State" means a member state of the European Union; "Minister" means the Minister responsible for Finance; "modification" means any change, variation or amendment to the original terms of the contract including, but not limited to, the introduction of new conditions and to the removal or replacement of existing conditions; "non-compliant tender" means a tender which does not conform to the terms and conditions specified in the notice or EU notice to tender or in the procurement documents themselves; "notice" means a notice published in the Gazette; "prior information notices" means a notice published in the Official Journal; "procurement" means acquisition by means of a public contract o f w o r k s, s u p p l i e s o r s e r v i c e s b y o n e o r m o r e c o n t r a c t i n g authorities from economic operators chosen by those contracting authorities, whether or not the supplies, works, or services are intended for a public purpose; Substituted by: L.N. 26 of 2018. "procurement document" means any document produced or referred to by the contracting entity to describe or determine elements of the procurement or the procedure, including the contract notice, the periodic indicative notice or the notices on the existence of a qualification system where they are used as a means of calling for competition, the technical specifications, the descriptive document, proposed conditions of contract, formats for the presentation of documents by candidates and tenderers, information on generally applicable obligations and any additional documents; "procurement service provider" means a public or private body which offers ancillary purchasing activities on the market; S.L. 601.03 "Public Contracts Review Board" means the Public Contracts Review Board as established under the Public Procurement Regulations; "regional authorities" includes authorities listed nonexhaustively in NUTS 1 and 2, as referred to in Regulation (EC) No 1059/2003 of the European Parliament and of the Council; S.L. 601.03 "Review Board" shall have the same meaning as in the Public Procurement Regulations; "service contracts" means contracts having as their object the provision of services other than those referred to in the definition "works contracts"; PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS [ S.L.601.05 "SME" shall be understood as defined in Commission Recommendations 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises; "standard" means a technical specification, adopted by a recognised standardisation body, for repeated or continuous application, with which compliance is not compulsory, and which is one of the following: (a) "international standard" means a standard adopted by an international standardisation organisation and made available to the general public; (b) "European standard" means a standard adopted by a European standardisation organisation and made available to the general public; (c) "national standard" means a standard adopted by a national standardisation organisation and made available to the general public; "supply, works and service contracts" are contracts for pecuniary interest concluded in writing between one or more of the contracting entities referred to in sub-regulation

(2), and one or more contractors, suppliers, or service providers; "supply contracts" means contracts having as their object the purchase, lease, rental or hire-purchase, with or without an option to buy, of products. A supply contract may include, as an incidental matter, siting and installation operations; "technical reference" means any deliverable produced by European standardisation bodies, other than European standards, according to procedures adapted to the development of market needs; "technical specification" means either (

1. a)in the case of works contracts the totality of the technical prescriptions contained in particular in the procurement documents, defining the characteristics required of a material, product or supply, so that it fulfils the use for which it is intended by the contracting entity; those characteristics include levels of environmental and climate performance, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, safety or dimensions, including the procedures concerning quality assurance, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions and production processes and methods at any stage of the life cycle of the works; those characteristics also include rules relating to design and costing, the test, inspection and acceptance conditions for works and methods or techniques of construction and all other technical conditions which the contracting entity is in a position to prescribe, under general or specific regulations, in relation to the finished works and to the materials or parts which they 7 8 [ S.L.601.05 PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS involve; or (
2. b)in the case of supply or service contracts a specification in a document defining the required characteristics of a product or a service, such as quality levels, environmental and climate performance levels, design for all requirements (including accessibility for disabled persons) and conformity assessment, performance, use of the product, safety or dimensions, including requirements relevant to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking and labelling, user instructions, production processes and methods at any stage of the life cycle of the supply or service and conformity assessment procedures; "TFEU" means the Treaty on European Union and the Treaty on the Functioning of the European Union; "tenderer" means an economic operator that has submitted a tender; Cap. 406. "unacceptable tenders" means tenderers that do not have the required qualifications, and tenders whose price exceeds the contracting authority’s budget as determined and documented prior to the launching of the procurement procedure; "VAT" means value added tax under the Value Added Tax Act; "a work" means the outcome of building or civil engineering works taken as a whole which is sufficient in itself to fulfil an economic or technical function; "works contracts" means public contracts having as their object one of the following: (
3. a)the execution, or both the design and execution, of works related to one of the activities within the meaning of Schedule 1; (
4. b)the execution, or both the design and execution, of a work; (
5. c)the realisation, by whatever means, of a work corresponding to the requirements specified by the contracting entity exercising a decisive influence on the type or design of the work; "written" or "in writing" means any expression consisting of words or figures which can be read, reproduced and subsequently communicated, including information transmitted and stored by electronic means.

(2)"Contracting entities" are entities which: (

1. a)are contracting authorities or public undertakings and which pursue one of the activities referred to in regulations 8 to 14; (
2. b)when they are not contracting authorities or public undertakings, have as one of their activities any of the PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS [ S.L.601.05 activities referred to in regulations 7 to 13, or any combination thereof and operate on the basis of special or exclusive rights granted by a competent authority.

(3)(

1. a)"Public undertaking" means any undertaking over which the contracting authorities may exercise directly or indirectly a dominant influence by virtue of their ownership of it, their financial participation therein, or the rules which govern it. (
2. b)A dominant influence on the part of the contracting authorities shall be presumed in any of the following cases in which those authorities directly or indirectly (
3. i)hold the majority of the undertaking’s subscribed capital; (
4. ii)control the majority of the votes attaching to shares issued by the undertaking; (iii) can appoint more than half of the undertaking’s administrative, management or supervisory body.

(4)For the purpose of sub-regulations

(2)and

(3): (

1. a)special or exclusive rights means rights granted by a competent authority by way of any legislative, regulatory or administrative provision the effect of which is to limit the exercise of activities defined in regulations 7 to 13 to one or more entities, and which substantially affects the ability of other entities to carry out such activity; (
2. b)rights which have been granted by means of a procedure in which adequate publicity has been ensured and where the granting of those rights was based on objective criteria shall not constitute special or exclusive rights within the meaning of paragraph (a). Such procedures include: (
3. i)procurement procedures with a prior call for competition in conformity with the Public Procurement Regulations, the Concession Contracts Regulations, these regulations or the Public Procurement of Contracting Authorities or Entities in the fields of Defence and Security Regulations; (
4. ii)procedures pursuant to other legal acts of the Union listed in Schedule 2, ensuring adequate prior transparency for granting authorisations on the basis of objective criteria. 3. The scope of these regulations is that of regulating the procurement by contracting entities operating in the water, energy, transport and postal services sectors. S.L. 601.03 S.L. 601.09 S.L. 601.07 Scope. Applicability 4.

(1)These regulations shall regulate all the procurement procedures that are initiated after their entry into force. Applicability. 9 10 [ S.L.601.05 PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

(2)The application of these regulations is subject to Article 346 of the TFEU. Transitory provision.

1. Any procurement procedure which has been issued prior to the coming into force of these regulations shall continue to be regulated by the laws which were in force before the coming into force of these regulations, including any review on any decision thereon. Common provisions.
2. For the purposes of regulations 7, 8 and 9 "supply" shall include generation or production, wholesale and retail sale, while production of gas in the form of extraction falls within the scope of regulation
3. Gas and Heat. 7.

(1)As far as gas and heat are concerned, these regulations shall apply to the following activities: (

1. 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; (
2. b)the supply of gas or heat to such networks.

(2)The supply of gas or heat to networks which provide a service to the public by a contracting entity other than a contracting authority shall not be considered a relevant activity within the meaning of sub-regulation

(1)where: (a) the production of gas or heat by the entity concerned is the unavoidable consequence of carrying out an activity other than those referred to in sub-regulation

(1)of this regulation or in regulations 8 to 10; (b) supply to the public network is aimed only at the economic exploitation of such production and amounts to not more than twenty per cent of the entity’s turnover having regard to the average for the preceding three years, including the current year. Electricity. 8.

(1)As far as electricity is concerned, these regulations shall apply to the following activities: (

1. 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; (
2. b)the supply of electricity to such networks.

(2)The supply of electricity to networks which provide a service to the public by a contracting entity other than a contracting authority shall not be considered a relevant activity within the meaning of sub-regulation

(1)where all of the following conditions are met: (a) the production of electricity by the contracting entity concerned takes place because its consumption is necessary for carrying out an activity other than those referred to in sub-regulation

(1), or in regulations 7, 9 and 10; PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS [ S.L.601.05 11 (b) supply to the public network depends only on the contracting entity’s own consumption and has not exceeded thirty per cent of the contracting entity’s total production of energy, on the basis of the average for the preceding three years, including the current year. 9.

(1)As far as water is concerned, these regulations shall apply to the following activities: Water. (

1. a)the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of drinking water; (
2. b)the supply of drinking water to such networks.

(2)These regulations shall also apply to contracts or design contests awarded or organised by contracting entities which pursue an activity referred to in sub-regulation

(1)and which: (

1. a)are connected with hydraulic engineering projects, irrigation or land drainage, provided that the volume of water to be used for the supply of drinking water represents more than twenty per cent of the total volume of water made available by such projects or irrigation or drainage installations; (
2. b)are connected with the disposal or treatment of sewage.

(3)The supply by a contracting entity other than a contracting authority, of drinking water to fixed networks which provide a service to the public shall not be considered as a relevant activity within the meaning of sub-regulation

(1)where: (

1. a)the production of drinking water by the entity concerned takes place because its consumption is necessary for carrying out an activity other than those referred to in regulations 7 to 10; (
2. b)supply to the public network depends only on the contracting entity’s own consumption and has not exceeded thirty per cent of the contracting entity’s total production of drinking water, on the basis of the average for the preceding three years, including the current year. 10.

(1)These regulations shall apply to activities relating to the provision or operation of networks providing a service to the public in the field of transport by railway, automated systems, tramway, trolley bus, bus or cable. Transport services.

(2)As regards transport services, a network shall be considered to exist where the service is provided under operating conditions laid down by a competent authority, such as conditions on the routes to be served, the capacity to be made available or the frequency of the service. 11. These regulations shall apply to activities relating to the Ports and airports. 12 [ S.L.601.05 PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS exploitation of a geographical area for the purpose of the provision or operation of airports and maritime or inland ports or other terminal facilities to carriers by air, sea or inland waterway. Postal services. 12.

(1)These regulations shall apply to activities relating to the provision of: (

1. a)postal services; (
2. b)other services, other than postal services, on condition that such services are provided by an entity which also provides postal services within the meaning of subregulation

(2)(b) and provided that the conditions set out in regulation 24

(1)and

(2)are not satisfied in respect of the services falling within sub-regulation

(2)(b).

(2)For the purpose of this regulation and without prejudice to Directive 97/67/EC: (

1. a)"postal item" means an item addressed in the final form in which it is to be carried, irrespective of weight. In addition to items of correspondence, such items also include for instance books, catalogues, newspapers, periodicals and postal packages containing merchandise with or without commercial value, irrespective of weight; (
2. b)"postal services" means services consisting of the clearance, sorting, routing and delivery of postal items. This shall include both services falling within as well as services falling outside the scope of the universal service set up in conformity with Directive 97/67/EC; (
3. c)"other services, other than postal services" means services provided in the following areas: (
4. i)mail service management services (services both preceding and subsequent to despatch, such as mailroom management services); (
5. ii)services concerning postal items not included in sub-regulation

(2)(a), such as direct mail bearing no address. Extraction of oil and gas exploration or extraction of coal or other solid fuels. 13.

(1)These regulations apply to activities relating to the exploitation of a geographical area for the purpose of: (

1. a)extracting oil or gas; (
2. b)exploring for, or extracting, coal or other solid fuels.

(2)These regulations do not apply to activities relating to the exploration for oil and gas.

(3)For the purpose of this regulation: (

1. a)"exploration" should be considered to include the activities that are undertaken in order to verify whether oil and gas is present in a given zone and if so PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS [ S.L.601.05 13 whether it is commercially exploitable; (
2. b)"extraction" should be considered as the "production" of oil and gas; (
3. c)"production" should be considered to include the setting up of adequate infrastructure for future production of oil such as oil platforms, pipelines, and terminals. 14.

(1)This regulation shall apply to tenders covering products originating in third countries with which the Union has not concluded, whether multilaterally or bilaterally, an agreement ensuring comparable and effective access for Union undertakings to the markets of those third countries. Tenders comprising products originating in third countries.

(2)Any tender submitted for the award of a supply contract may be rejected where the proportion of the products originating in third countries as determined in accordance with Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9th October 2013, exceeds fifty per cent of the total value of the products constituting the tender.

(3)Software used in telecommunications network equipment shall be regarded as products.

(4)Subject to the provisions of sub-regulation

(2), where two or more tenders are equivalent in the light of the contract award criteria defined in regulation 170, preference shall be given to those tenders which may not be rejected pursuant to sub-regulation

(2). The prices of those tenders shall be considered equivalent for the purposes of this regulation if the price difference does not exceed three per cent.

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

(1)where its acceptance would oblige the contracting entity to acquire equipment having technical characteristics different from those of existing equipment, resulting i n i n c o m p a t i b i l i t y, t e c h n i c a l d i ff i c u l t i e s i n o p e r a t i o n a n d maintenance or disproportionate costs.

(6)For the purposes of this regulation, third countries to which the benefit of these regulations has been extended by a Council Decision in accordance with sub-regulation

(1)shall not be taken into account for determining the proportion, referred to in subregulation

(2), of products originating in third countries. 15.

(1)These regulations shall not apply to contracts awarded for purposes of resale or lease to third parties, provided that the contracting entity enjoys no special or exclusive right to sell or lease the subject of such contracts, and other entities are free to sell or lease it under the same conditions as the contracting entity.

(2)The contracting entities shall notify the Commission if so requested of all the categories of products or activities which they regard as excluded under sub-regulation

(1). Contracts awarded for purposes of resale or lease to third parties. 14 [ S.L.601.05 PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS Contracts and design contests awarded or organised for purposes other than the pursuit of a covered activity or for the pursuit of such an activity in a third country. 16.

(1)These regulations shall not apply to contracts which the contracting entities award for purposes other than the pursuit of their activities as described in regulations 7 to 13 or for the pursuit of such activities in a third country, in conditions not involving the physical use of a network or geographical area within the Union nor to design contests organised for such purposes. Contracts awarded and design contests organised pursuant to international rules. 17.

(1)These regulations shall not apply to contracts or design contests which the contracting entity is obliged to award or organise in accordance with procurement procedures different from those laid down in these regulations established by any of the following

(2)The contracting entities shall notify the Commission if so requested of all the categories of products or activities which they regard as excluded under sub-regulation

(1). (

1. a)a legal instrument creating international law obligations, such as an international agreement, concluded in accordance with the Treaties, between a Member State and one or more third countries or subdivisions thereof and covering works, supplies or services intended for the joint implementation or exploitation of a project by their signatories; (
2. b)an international organisation; (
3. c)contracts and design contests which the contracting entity awards or organises in accordance with procurement rules provided by an international organisation or international financing institution, where the contracts or design contests concerned are fully financed by that organisation or institution; in the case of contracts or design contests co-financed the most part by an international organisation or international financing institution the parties shall agree on applicable procurement procedures: Provided that for design contests, falling under this regulation, and having an estimated value which meets or exceeds the thresholds established under Schedule 5, the contracting entity shall communicate all legal instruments referred to in paragraph (
4. a)to the Commission.

(2)The provisions of regulation 23 shall apply to contracts and design contests involving defence or security aspects which are awarded or organised pursuant t o int ern atio nal rules. S u bregulation

(1)shall not apply to those contracts and design contests. Specific exclusions for service contracts. 18.

(1)These regulations shall not apply to: (

1. a)acquisition or rental, by whatever financial means, or land, existing buildings or other immovable property or concerning rights thereon; (
2. b)arbitration and conciliation services; PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS [ S.L.601.05 (
3. c)legal representation of a client by a lawyer within the meaning of Article 1 of Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services in: (
4. i)an arbitration or conciliation held in a Member State, a third country or before an international arbitration or conciliation instance; (
5. ii)judicial proceedings before the courts, tribunals or public authorities of a Member State or a third country or before international courts, tribunals or institutions; (
6. d)legal advice given in preparation of any of the proceedings referred to in paragraph (
7. c)or where there is a tangible indication and high probability that the matter to which the advice relates will become the subject of such proceedings, provided that the advice is given by a lawyer within the meaning of Article 1 of Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services; (
8. e)document certification and authentication services which must be provided by notaries; (
9. f)legal services provided by trustees or appointed guardians or other legal services the providers of which are designated by a court or tribunal in the Member State concerned or are designated by law to carry out specific tasks under the supervision of such tribunals or courts; (
10. g)other legal services which are connected, even occasionally, with the exercise of official authority; (
11. h)financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/ EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending, central bank services and operations conducted with the European Financial Stability Facility and the European Stability Mechanism; (
12. i)loans, whether or not in connection with the issue, sale, purchase or transfer of securities or other financial instruments; (
13. j)employment contracts; (
14. k)public passenger transport services by rail or metro; (
15. l)civil defence, civil protection, and danger prevention services that are provided by non-profit organisations or associations, and which are covered by CPV codes 75250000-3, 75251000-0, 75251100-1, 75251110-4, 75251120-7, 75252000-7, 75222000-8, 98113100-9 and 85143000-3 except patient transport ambulance services; 15 16 [ S.L.601.05 PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS (
16. m)contracts for broadcasting time or programme provision that are awarded to audiovisual or radio media service providers; (
17. n)public service contracts for research and development services other than those public service contracts for research and development services which fall under the CPV codes 73000000-2 to 73120000-9, 733000005, 73420000-2 and 73430000-5 and whose benefits accrue exclusively to the contracting authority for its use in the conduct of its own affairs, on condition that the service provided is wholly remunerated by the contracting authority; (
18. o)when it is approved by the Commission in line with Article 35 of Directive 2014/25/EU.

(2)For the purposes of this regulation: "media service providers", limitedly for the purpose of subregulation

(1)(

1. m)shall have the same meaning as pursuant to point (
2. d)of Article 1

(1)of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services; "programme" shall have the same meaning as pursuant to point (b) of Article 1

(1)of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services and shall also include radio programmes and radio programme materials; "programme material" shall have the same meaning of the term "programme". Service contracts awarded on the basis of an exclusive right. Contracts awarded by certain contracting entities for the purchase of water and for the supply of energy or of fuels for the production of energy.

1. These regulations shall not apply to service contracts awarded to an entity which is itself a contracting authority or to an association of contracting authorities on the basis of an exclusive right which they enjoy pursuant to a law, regulation or published administrative provision which is compatible with the TFEU.
2. These regulations shall not apply to: (a) contracts for the purchase of water if awarded by contracting entities engaged in one or both of the activities relating to drinking water referred to in regulation 9

(1); (b) contracts awarded by contracting entities themselves being active in the energy sector by being engaged in an activity referred to in regulation 7

(1), regulation 8

(1)or regulation 13 for the supply (

1. i)of energy; (
2. ii)of fuels for the production of energy. PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS [ S.L.601.05 21.

(1)These regulations shall not apply to contracts falling within the scope of Public Procurement of Contracting Authorities or Entities in the fields of Defence and Security Regulations as well as to contracts to which the said regulations do not apply pursuant to regulations 9, 13 and 14 thereof. 17 Defence and security. S.L. 601.07

(2)Contracts and design contests not otherwise exempted under sub-regulation

(1)to the extent that the protection of the essential security interests of Malta cannot be guaranteed by less intrusive measures, for instance by imposing requirements aimed at protecting the confidential nature of information which the contracting entity makes available in a contract award procedure as provided for in these regulations.

(3)These regulations shall also not apply to contracts and design contests not otherwise exempted under sub-regulation

(1)to the extent that the application of these regulations would oblige Malta to disclose and supply information which it considers contrary to the essential interests of its security. 22. These regulations shall not apply to contracts or design contests which are declared to be secret or must be accompanied by special security measures in accordance with the laws of Malta provided that it has been determined that the essential interests concerned cannot be guaranteed by less intrusive measures such as those described in regulation 21

(2). Contracts declared to be secret. 23.

(1)These regulations shall not apply to contracts or design contests involving defence or security aspects which the contracting entity is obliged to award or organise in accordance with procurement procedures different from those laid down in these regulations established by any of the following: Contracts and design contests involving defence or security aspects awarded or organised pursuant to international rules. (

1. a)an international agreement or arrangement, concluded in accordance with the Treaties, between Malta and one or more third countries or subdivisions thereof and covering works, supplies or services intended for the joint implementation or exploitation of a project by their signatories; (
2. b)an international agreement or arrangement relating to the stationing of troops and concerning the undertakings of Malta or a third country; (
3. c)an international organisation.

(2)All agreements or arrangements referred to in subregulation

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

(3)These regulations shall not apply to contracts and design contests involving defence or security aspects which the contracting entity awards in accordance with procurement rules provided by an international organisation or international financing institution, where the contracts or design contests concerned are fully financed by this organisation or institution. In the case of contracts or design contests co-financed for the most part by an international organisation or international financing institution the parties shall agree on applicable procurement procedures. 18 [ S.L.601.05 Activities directly exposed to competition. PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS 24.

(1)Contracts intended to enable an activity mentioned in regulations 7 to 13 to be carried out shall not be subject to these regulations if the contracting entities, having introduced the request pursuant to regulation 25, can demonstrate that, in Malta, the activity is directly exposed to competition on markets to which access is not restricted; nor shall design contests that are organised for the pursuit of such an activity in that geographic area be subject to these regulations.

(2)The activity concerned may form part of a larger sector or be exercised only in certain parts of Malta. The competition assessment referred to in sub-regulation

(1)is without prejudice to the application of competition law. Such assessment shall be made having regard to the market for the activities in question and the geographical reference market within the meaning of subregulations

(3)and

(4).

(3)For the purposes of sub-regulations

(1)and

(2), the question of whether an activity is directly exposed to competition shall be decided on the basis of criteria that are in conformity with the TFEU provisions on competition, such as the characteristics of the goods or services concerned, the existence of alternative goods or services considered to be substitutable on the supply side or demand side, the prices and the actual or potential presence of more than one supplier of the goods or services in question.

(4)The geographical reference market, on the basis of which exposure to competition is assessed, shall consist of the area in which the undertakings concerned are involved in the supply and demand of products or services, in which the conditions of competition are sufficiently homogeneous and which can be distinguished from neighbouring areas because, in particular, conditions of competition are appreciably different in those areas. That assessment shall take account in particular of the nature and characteristics of the products or services concerned of the e x i s t e n c e o f en t r y b ar r i e r s o r o f c o n su m e r p r ef e r e n c es , o f appreciable differences of the undertakings; market shares between the area concerned and neighbouring areas or of substantial price differences.

(5)For the purposes of sub-regulations

(1)and

(2), access to a market shall be deemed not to be restricted if Malta has implemented and applied the provisions of Community legislation mentioned in Schedule 3.

(6)If free access to a given market cannot be presumed on the basis of the provisions of sub-regulation

(5). it must be demonstrated that access to the market in question is free de facto and de jure. Procedure for establishing whether regulation 24 is applicable. 25.

(1)Where a contracting entity considers that, on the basis of the criteria set out in regulation 24

(3),

(4),

(5)and

(6), a given activity is directly exposed to competition on markets to which access is not restricted, it may submit a request to the Commission to establish that these regulations do not apply to the award of contracts or the organisation of design contests for the pursuit of that activity, where appropriate together with the position adopted PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS [ S.L.601.05 19 by an independent national authority that is competent in relation to the activity concerned.

(2)The requests in sub-regulation

(1)may concern activities which are part of a larger sector or which are exercised only in certain parts of Malta.

(3)In the request, the contracting entity concerned shall inform the Commission of all relevant facts, and in particular of any law, regulation, administrative provision or agreement concerning compliance with the conditions set out in regulation 24

(1)and

(2).

(4)Unless a request coming from a contracting entity is accompanied by a reasoned and substantiated position, adopted by an independent national authority that is competent in relation to the activity concerned, which thoroughly analyses the conditions for the possible applicability of regulation 24

(1)and

(2)to the activity concerned in accordance with regulation 24

(3),

(4),

(5)and

(6), the Commission shall immediately inform the Member State concerned. The Member State through the contracting entity shall in such cases inform the Commission of all relevant facts, and in particular of any law, regulation, administrative provision or agreement concerning compliance with the conditions set out in regulation 24

(1)and

(2).

(5)Upon a request submitted in accordance with subreg ul a t io ns

(1)a n d

(2), t he Co mm i s s io n m a y, by m e a ns of implementing acts adopted within the periods set out in Schedule 6, establish whether an activity referred to in regulations 7 to 13 is directly exposed to competition on the basis of the criteria set out in regulation 24.

(6)Contracts intended to enable the activity concerned to be carried out and design contests that are organised for the pursuit of such an activity shall cease to be subject to these regulations in any of the following cases: (a) the Commission has adopted the implementing act establishing the applicability of regulation 24

(1)and

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

1. b)the Commission has not adopted the implementing act within the period provided for in Schedule 6. 26. After the submission of a request, the Member State or the c o n t r a c t i n g e n t i t y c o n c e r n e d m a y, w i t h t h e C o m m i s s i o n ’s agreement, substantially modify its request, in particular as regards the activities or the geographical areas concerned. In that case, a new period for the adoption of the implementing act shall apply, which shall be calculated in accordance with paragraph 1 of Schedule 9, unless a shorter period is agreed on by the Commission and the contracting entity which has presented the request. Modification of request. 27. When an activity is already the subject of a procedure under this title, further requests concerning the same activity before the expiry of the period opened in respect of the first request shall not be considered as a new procedure and shall be treated in the context of the first request. Further requests before the expiry of the period opened for the first request. 20 [ S.L.601.05 Implementing acts. PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS 28. The Commission shall adopt an implementing act establishing detailed rules. That implementing act shall include rules relating to: (
2. a)the publication in the Official Journal of the European Union, for information of the date on which the period set out in paragraph 1 of Schedule 6 begins and ends, including any prolongations or suspensions of those periods, as provided for in the same schedule; (
3. b)publication of the possible applicability of regulation 24

(1)and

(2); (c) implementing provisions concerning the form, content and other details of requests pursuant to regulation 25

(1),

(2)and

(3). Contracts between contracting authorities. 29.

(1)Subject to the provisions of Part III, a public contract, having an estimated value which falls under regulation 30

(1)(b), awarded by a contracting authority to a legal person governed by p r i v a t e o r p u b l ic l a w, s h a ll f a l l o u ts i d e t h e s c o p e o f t he s e regulations when all of the following conditions are fulfilled: (

1. a)the contracting authority exercises over the legal person concerned a control which is similar to that which it exercises over its own departments; (
2. b)more than eighty per cent of the activities of the controlled legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authority or by other legal persons controlled by that contracting authority; (
3. c)there is no direct private capital participation in the controlled legal person with the exception of noncontrolling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.

(2)A contracting authority shall be deemed to exercise over a legal person a control similar to that which it exercises over its own departments within the meaning of sub-regulation

(1)(a) where it exercises a decisive influence over both strategic objectives and significant decisions of the controlled legal person. Such control may also be exercised by another legal person, which is itself controlled in the same way by the contracting authority.

(3)The provisions of sub-regulations

(1)and

(2)also apply where a controlled person which is a contracting authority awards a contract to its controlling contracting authority, or to another legal person controlled by the same contracting authority, provided that there is no direct private capital participation in the legal person being awarded the public contract with the exception of noncontrolling 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. PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS [ S.L.601.05

(4)A contracting authority, which does not exercise over a legal person governed by private or public law control within the meaning of sub-regulations

(1)and

(2), may nevertheless award a contract to that legal person without applying these regulations, where all of the following conditions are fulfilled: (

1. a)the contracting authority exercises jointly with other contracting authorities a control over that legal person which is similar to that which they exercise over their own departments; (
2. b)more than eighty per cent of the activities of that legal person are carried out in the performance of tasks entrusted to it by the controlling contracting authorities or by other legal persons controlled by the same contracting authorities; and (
3. c)there is no direct private capital participation in the controlled legal person with the exception of noncontrolling and non-blocking forms of private capital participation required by national legislative provisions, in conformity with the Treaties, which do not exert a decisive influence on the controlled legal person.

(5)For the purposes of sub-regulation

(4)(a), contracting authorities shall be deemed to exercise joint control over a legal person where all of the following conditions are fulfilled: (

1. a)the decision-making bodies of the controlled legal person are composed of representatives of all participating contracting authorities. Individual representatives may represent several or all of the participating contracting authorities; (
2. b)those contracting authorities are able to jointly exert decisive influence over the strategic objectives and significant decisions of the controlled legal person; (
3. c)the controlled legal person does not pursue any interests which are contrary to those of the controlling contracting authorities.

(6)A contract concluded exclusively between two or more contracting authorities shall fall outside the scope of these regulations, where all of the following conditions are met: (

1. a)the contract establishes or implements a cooperation between the participating contracting authorities with the aim of ensuring that public services they have to perform are provided with a view to achieving objectives they have in common; (
2. b)the implementation of that cooperation is governed solely by considerations relating to the public interest; (
3. c)the participating contracting authorities perform on the open market less than twenty per cent of the activities concerned by the cooperation.

(7)For the determination of the percentage of activities 21 22 [ S.L.601.05 PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS referred to in sub-regulation

(1)(b), sub-regulation 4(b), and subregulation

(6)(c), the average total turnover, or an appropriate alternative activity based measure such as costs incurred by the relevant legal person with respect to services, supplies and works for the three years preceding the contract award shall be taken into consideration.

(8)Where, because of the date on which the relevant legal person was created or commenced activities or because of a reorganisation of its activities, the turnover, or alternative activity based measure such as costs, are either not available for the preceding three years or no longer relevant, it shall be sufficient to show that the measurement of activity is credible, particularly by means of business projections. Administration of the process. Amended by: L.N. 26 of 2018 L.N. 196 of 2020; L.N. 26 of 2022; L.N. 226 of 2023; L.N. 362 of 2024. 30.

(1)Without prejudice to the applicability of the other provisions of these regulations, the procurement process of public contracts - Amended by: L.N. 26 of 2018 L.N. 196 of 2020. (

1. a)the estimated value of which is less than four hundred forty three thousand euro (€443,000), shall be issued, administered and determined by the contracting authorities without the involvement of the Director; Amended by: L.N. 26 of 2018 L.N. 196 of 2020. (
2. b)the estimated value of which equals or exceeds the threshold of that four hundred forty three thousand euro (€443,000) shall be issued, administered and determined by the Director on behalf of the contracting authority: Provided that public contracts required by Enemalta plc or by the Water Services Corporation shall be issued, administered and determined by it on their own without the involvement of the Director, subject to the provisions set out in these regulations, including but not limited to the right of appeal.

(2)The Minister shall, from time to time, by regulations determine the thresholds applicable under these regulations. Such thresholds shall be equal to, and categorised in the same fashion, as the thresholds established pursuant to the relevant European Union Directives as published from time to time in the Official Journal of the European Union. Contracts awarded to affiliated undertaking. Affiliated Undertakings 31.

(1)Notwithstanding the provisions of regulation 29, and provided that the conditions in sub-regulation

(2)of this regulation are met, these regulations shall not apply to contracts awarded: (

1. a)by a contracting entity to an affiliated undertaking; (
2. b)by a joint venture, formed exclusively by a number of contracting entities for the purpose of carrying out activities described in regulations 7 to 13, to an undertaking which is affiliated with one of those PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS [ S.L.601.05 contracting entities.

(2)The provisions of sub-regulation

(1)shall apply to: (

1. a)service contracts provided that at least eighty per cent of the average total turnover of the affiliated undertaking over the preceding three years, taking into account all services provided by that undertaking, derives from the provision of services to the contracting entity or other undertakings with which it is affiliated; (
2. b)supply contracts provided that at least eighty per cent of the average total turnover of the affiliated undertaking, taking into account all supplies provided by that undertaking, over the preceding three years derives from the provision of supplies to the contracting entity or other undertakings with which it is affiliated; (
3. c)to works contracts provided that at least eighty per cent of the average total turnover of the affiliated undertaking, taking into account all works provided by that undertaking, over the preceding three years derives from the provision of works to the contracting entity or other undertakings with which it is affiliated.

(3)Where, because of the date on which an affiliated undertaking was created or commenced activities, the turnover is not available for the preceding three years, it shall be sufficient for that undertaking to show that the turnover referred to in subregulation

(2)(a), (

1. b)or (
2. c)of credible, in particular by means of business, projections.

(4)Where more than one undertaking affiliated with the contracting entity with which they form an economic group provides the same or similar services, supplies or works, the percentages shall be calculated taking into account the total turnover deriving respectively from the provision of services, supplies or works by those affiliated undertakings.

(5)For the purposes of this regulation, "affiliated undertaking" means any undertaking the annual accounts of which are consolidated with those of the contracting entity in accordance with the requirements of the Directive 2013/34/EU.

(6)In the case of entities, which are not subject to Directive 2013/34/EU, "affiliated undertaking" shall mean any undertaking that: (

1. a)may be, directly or indirectly, subject to a dominant influence by the contracting entity; (
2. b)may exercise a contracting entity; dominant influence over the (
3. 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. 23 24 [ S.L.601.05 PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

(7)For the purposes of sub-regulation

(6), the term "dominant influence" shall have the same meaning as in regulation 2

(3). Joint ventures. 32. Notwithstanding the provisions of regulation 29, and provided that the joint venture has been set up in order to carry out the activity concerned over a period of at least three years and that the instrument setting up the joint venture stipulates that the contracting entities, which form it, will be part thereof for at least the same period, these regulations shall not apply to contracts awarded by any of the following: (

1. a)by a joint venture, formed exclusively by a number of contracting entities for the purpose of carrying out activities within the meaning of regulations 7 to 13, to one of those contracting entities; (
2. b)by a contracting entity to such a joint venture of which it forms part. Applicability of the Public Procurement Regulations. S.L. 601.03 Procurement procedure carried out by the Director on behalf of a contracting authority. Amended by: L.N. 46 of 2019. The Office of the Director of Contracts 33. The provisions of regulations 10, 11, 12, 14 and 15 of the Public Procurement Regulations shall mutatis mutandis apply to these regulations. 34. In relation to a procurement procedure carried out by the Director on behalf of a contracting authority with an estimated value which falls under regulation 30

(1)(

1. b)it shall also be the function of the Director: (
2. a)to establish and approve the general conditions of the procurement documents; (
3. b)to authorise deviations from standard terms and conditions in accordance with the regulations set out herein and which may be included in the procurement documents; (
4. c)to consider an extension or the cancellation of a procurement procedure; (
5. d)to order that a procurement period of any call for offers referred to in these regulations be extended if he considers such an extension justified by the circumstances of the case; (
6. e)to vet and approve, with or without modification, procurement documents before the same are issued and published; (
7. f)to approve, where required under these regulations, modifications which exceed the amount established in regulation 177

(3); (

1. g)to approve requests made by the contracting authorities for the extension of contracts if he considers that circumstances so warrant in the public interest and specific provision for such extensions is PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS [ S.L.601.05 made in the procurement document; (
2. h)to identify and implement appropriate means to enable him to monitor the proper execution of contracts; (
3. i)to make regulations to award contracts in the name and on behalf of contracting authorities and contracting entities covered by these regulations, including the case of an association of authorities of which such contracting authority is a member; (
4. j)to establish the procedure affecting the award of contracts governed by procedures deviating from these regulations as long as these procedures shall be published by a notice in the Gazette; (
5. k)to publish in the Gazette a notice of all awards of contracts including variations outside the limit of the tender conditions, within six months of their award; (
6. l)to award tenders and sign contracts in the name and on behalf of contracting authorities as established under these regulations; (
7. m)to take appropriate measures to ensure that in the performance of public contracts economic operators comply with applicable obligations in the fields of environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Schedule 14: Provided that the director may decide not to award a contract to the tenderer submitting the best tender where he has established that the tender does not comply with the applicable obligations referred to in this paragraph; and. (
8. n)to make and transmit to the Minister a report by not later than six months after the end of each financial year about (
9. i)the performance of the General Contracts Committee, and of the Special Contracts Committee during the financial year being reported upon. The report shall, in particular, provide details regarding appeals submitted by candidates and tenderers and any person having or having had an interest in obtaining a particular public contract in terms of these regulations and the decisions arrived at by the General Contracts Committee; and (
10. ii)the results of the monitoring activities: Provided that following the transmission of the report to the Minister, the Director shall ensure that the report is made public; (
11. o)to inform the Commission of: (
12. i)any general difficulties, in law or in fact, encountered and reported by undertakings in 25 26 [ S.L.601.05 PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS securing the award of service contracts in third countries; (
13. ii)any difficulties, in law or in fact, encountered and reported by undertakings and which are due to the non-observance of the international labour law provisions listed in Schedule 14 when those undertakings have tried to secure the award of contracts in third countries: Provided that the provisions of sub-paragraphs (
14. i)and (
15. ii)shall be without prejudice to the commitments of the Union in relation to third countries ensuing from international agreements on public procurement particularly within the framework of the WTO. Duties of a contracting authority. Amended by: L.N. 46 of 2019 35. The Contracting Authority It shall be the duty of all contracting authorities: (
16. a)to observe and abide by these regulations; (
17. b)to administer their own procurement when the estimated values of such a procurement falls under the threshold established in regulation 30

(1)(a); (c) to draw up procurement documents and all relevant supporting documentation: Provided that when a contracting authority needs to publish a procurement process with an estimated value which falls under the threshold established under regulation 30

(1)(b), the same contracting authority shall forward the procurement document and all relevant supporting documentation to the Director so that they may be vetted, published and administered by the latter; (

1. d)to ensure that any references to nomenclatures in the context of public procurement shall be made using the Common Procurement Vocabulary; (
2. e)to publish all calls for tenders and quotations, through Government’s e-procurement platform, unless otherwise authorised in writing by the Director; (
3. f)to monitor the implementation of the procurement process; (
4. g)to take appropriate measures to effectively prevent, identify and remedy conflicts of interest arising in the conduct of procurement procedures so as to avoid any distortion of competition and to ensure equal treatment of all economic operators; (
5. h)to indicate in its procurement documents that the award of the contract is subject to the review procedure as set forth in these regulations and to include an extract of the relevant part of the appeals process in the said documents for the guidance of economic operators; PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS [ S.L.601.05 (
6. i)to administer and implement all contracts signed by them or on their behalf and to defend in front of any court or tribunal any issue that might arise in the execution of the contract; (
7. j)to effect all payments resulting from the execution of the contract; 27 (
8. k)to take appropriate measures to ensure that, during the execution of a contract, economic operators comply with the applicable obligations in the fields of environmental, social and labour law established by Union law, national law, collective agreements or by the international environmental, social and labour law provisions listed in Schedule 14: Provided that the Contracting authority or contracting entity as the case maybe may decide not to award a contract to the tenderer submitting the best tender where they have established that the tender does not comply with the applicable obligations referred to in this paragraph. (
9. l)to notify the Commission, if so requested by the latter, the following information regarding the application of regulation 31

(1)and

(6)and regulation 32: (

1. i)the names of the undertakings or joint ventures concerned; (
2. ii)the nature and value of the contracts involved; (iii) proof deemed necessary by the Commission that the relationship between the undertaking or joint venture to which the contracts are awarded and the contracting entity complies with the requirements of regulation 31 or 32. 36.

(1)When an Evaluation Committee is appointed by a contracting authority or a contracting entity governed by these regulations, the Evaluation Committee shall draw up an evaluation report and communicate the report as follows: Appointment of an Evaluation Committee. (a) if the estimated value of the tender falls under the threshold established under regulation 30

(1)(a), the individual report shall be addressed to the Departmental Contracts Committee and shall be drawn in terms of the provisions of Part III; (b) if the estimated value of the tender falls under the threshold established under regulation 30

(1)(b), the individual report shall be addressed to the Director and shall be drawn in terms of regulation

2. For tenders with an estimated value which falls under the threshold established in regulation 30

(1)(b), a contracting authority can impose or remit penalties only after obtaining the permission of the Director. Centralised purchasing activities and joint procurement Penalties. 28 [ S.L.601.05 Centralised purchasing bodies. PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS 38.

(1)Contracting authorities listed in Schedule 4 are authorised to act also as a central purchasing body.

(2)It shall be the function of central purchasing bodies to periodically notify Heads of Departments of the prices and conditions applicable for, and the procedure to be followed in, the procurement of such equipment, stores, works or services. Centralised purchasing activities and central purchasing bodies. 39.

(1)A contracting entity can acquire supplies and, or services from a central purchasing body intended for contracting entities, Obligations. 40.

(1)When a contracting entity carries out its procurement under regulation 39, it shall be deemed to have fulfilled its obligations under these regulations.

(2)Contracting entities can acquire works, supplies and services by using contracts awarded by a central purchasing body, by using dynamic purchasing systems operated by a central purchasing body, or by using a framework agreement concluded by a central purchasing body offering the centralised purchasing activity referred to in paragraph (b) of the definition "centralised purchasing activities" under regulation 2. Where a dynamic purchasing system which is operated by a central purchasing body may be used by other contracting entities, this shall be mentioned in the call for competition setting up that dynamic purchasing system.

(2)A contracting entity also fulfils its obligations pursuant to these regulations where it acquires works, supplies or services: (

1. a)by using contracts awarded by the central purchasing body; (
2. b)by using dynamic purchasing systems operated by the central purchasing body; or (
3. c)by using a framework agreement concluded by the central purchasing body offering centralised purchasing activity referred to paragraph (
4. b)of the definition "centralised purchasing activities" under regulation 2.

(3)Notwithstanding the provisions of sub-regulation

(2), the contracting entity concerned shall be responsible for fulfilling the obligations pursuant to these regulations in respect of the parts it conducts itself, such as: (

1. a)awarding a contract under a dynamic purchasing system, which is operated by a central purchasing body; (
2. b)conducting a reopening of competition under a framework agreement that has been concluded by a central purchasing body.

(4)All procurement procedures conducted by a central purchasing body shall be performed using electronic means of communication, in accordance with the requirements set out in PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS [ S.L.601.05 29 regulation 70.

(5)Contracting entities may, without applying the procedures provided for in these regulations, award a public service contract for the provision of centralised purchasing activities to a central purchasing body.

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

(5)may al so i ncl ud e th e p ro vi si on of a ncil lary pu rch asing activities. 41.

(1)After seeking the approval of the Director and subject to the conditions the latter may impose, two or more contracting entities may agree to perform certain specific procurements jointly. Occasional joint procurement.

(2)Where the estimated value of the joint procurement falls under the threshold established under regulation 30

(1)(b), and unless the Director agrees otherwise, the procurement procedure shall be administered by the Director.

(3)Where the conduct of a procurement procedure in its entirety is carried out jointly in the name and on behalf of all the contracting entities concerned, they shall be jointly responsible for fulfilling their obligations pursuant to these regulations. This applies also in cases where one contracting entity manages the procedure, acting on its own behalf and on the behalf of the other contracting entities concerned.

(4)Where the conduct of a procurement procedure is not in its entirety carried out in the name and on behalf of the contracting entities concerned, they shall be jointly responsible only for those parts carried out jointly. Each contracting entity shall have sole responsibility for fulfilling its obligations pursuant to these regulations in respect of the parts it conducts in its own name and on its own behalf. 42.

(1)A contracting entity may, with the approval of the Director and subject to the conditions the latter may impose, participate in procurement procedures involving contracting authorities from different Member States.

(2)Where the estimated value of the joint procurement falls under the threshold established under regulation 30

(1)(b), the application of this regulation shall be subject to what is established under regulations 25 and 35(n).

(3)A contracting entity may make use of centralised purchasing activities offered by central purchasing bodies located in another Member State: Provided that contracting entities shall not use the means provided in this regulation for the purpose of avoiding the application of mandatory public law provisions in conformity with Union law to which they are subject.

(4)The provision of centralised purchasing activities by a central purchasing body located in another Member State shall be conducted in accordance with the national provisions of the Member State where the central purchasing body is located. Procurement involving contracting entities from different Member States. 30 [ S.L.601.05 PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

(5)The national provisions of the Member State where the central purchasing body is located shall also apply to the following: (

1. a)the award of a contract under a dynamic purchasing system; (
2. b)the conduct of a reopening of competition under a framework agreement.

(6)Several contracting entities from different Member States may jointly award a public contract, conclude a framework agreement or operate a dynamic purchasing system.

(7)Unless the necessary elements have been regulated by an international agreement concluded between the Member States concerned, the participating contracting entities shall conclude an agreement that determines: (

1. a)the responsibilities of the parties and the relevant applicable national provisions; (
2. b)the internal organisation of the procurement procedure, including the management of the procedure, the distribution of the works, supplies or services to be procured, and the conclusion of contracts.

(8)A participating contracting entity fulfils its obligations pursuant to these regulations when it purchases works, supplies or services from a contracting entity which is responsible for the procurement procedure.

(9)When determining responsibilities and the applicable national law as referred to in sub-regulation

(7)(a), the participating contracting entities may allocate specific responsibilities among them and determine the applicable provisions of their respective national laws.

(10)The allocation of responsibilities and the applicable national law shall be referred to in the procurement documents for jointly awarded public contracts.

(11)Where several contracting entities from different Member States have set up a joint entity, including European Groupings of territorial cooperation under Regulation (EC) No 1082/2006 of the European Parliament and of the Council of 5 July 2006 on a European grouping of territorial cooperation or other entities established under Union law, the participating contracting entities shall, by a decision of the competent body of the joint entity, agree o n the app li cabl e na tio nal proc uremen t ru les o f on e o f the following Member States: (a) the national provisions of the Member State where the joint entity has its registered office; (b) the national provisions of the Member State where the joint entity is carrying out its activities.

(12)The agreement referred to in sub-regulation

(11)may either apply for an undetermined period, when fixed in the constitutive act of the joint entity, or may be limited to a certain period of time, PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS [ S.L.601.05 31 certain types of contracts or to one or more individual contract awards. Mixed Procurement 43.

(1)Contracts which have as their subject two or more types of procurement, whether works, services or supplies, all of which are covered by these regulations, shall be awarded in accordance with the provisions applicable to the type of procurement that characterises the main subject of the contract in question. Mixed procurement covering the same activity.

(2)In the case of mixed contracts which have as their subjectmatter different types of procurement, all of which are covered by these regulations, consisting partly of services within the meaning of regulations 134 to 139 and partly of other services or of mixed contracts consisting partly of services and partly of supplies, the main subject shall be determined in accordance with which of the estimated values of the respective services or supplies is the highest.

(3)In cases of mixed contracts which have as their subjectmatter procurement covered by these regulations and procurement covered by other legal regimes and where the different parts of a given contract are objectively separable the following shall apply: (

1. a)contracting authorities may choose to award separate contracts for the separate parts or to award a single contract. Where contracting authorities choose to award separate contracts for separate parts, the decision as to which legal regime applies to any one of such separate contracts shall be taken on the basis of the characteristics of the separate part concerned; (
2. b)where contracting authorities choose to award a single contract, these regulations shall, unless otherwise provided in regulation 23, apply to the ensuing mixed contract, irrespective of the value of the parts that would otherwise fall under a different legal regime and irrespective of which legal regime those parts would otherwise have been subject to; (
3. c)in the case of mixed contracts containing elements of supply, works and service contracts and of concessions, the mixed contract shall be awarded in accordance with these regulations, provided that the estimated value of the part of the contract which constitutes a contract covered by these regulations, calculated in accordance with regulations 42 to 55, is equal to or greater than the relevant threshold set out in Schedule 5.

(4)Where the different parts of a given contract are objectively not separable, the applicable legal regime shall be determined on the basis of the main subject-matter of that contract. 44.

(1)In the case of contracts intended to cover several activities, contracting entities may choose to award separate Procurement covering several activities. 32 [ S.L.601.05 PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS contracts for the purposes of each separate activity or to award a single contract.

(2)Where contracting entities choose to award separate contracts, the decision as to which rules apply to any one of such separate contracts shall be taken on the basis of the characteristics of the separate activity concerned. S.L. 601.03 S.L. 601.09

(3)The choice between awarding a single contract or awarding a number of separate contracts shall not, however, be made with the objective of excluding the contract or contracts from the scope of application of these regulations or where applicable the Public Procurement Regulations, or the Concession Contracts Regulations.

(4)A contract which is intended to cover several activities shall be subject to the rules applicable to the activity for which it is principally intended.

(5)In the case of contracts for which it is objectively i m p o s s i b l e t o d e t e r m in e f o r w h i c h a c t i v i t y t h e c o n t r a c t i s principally intended, the applicable rules shall be determined as follows: S.L. 601.03 S.L. 601.03 S.L. 601.03 S.L. 601.09 S.L. 601.07 Mixed procurement covering the same activity and involving defence or security aspects. S.L. 601.07 (

1. a)awarded in accordance with the Public Procurement Regulations, if one of the activities for which the contract is intended is subject to these regulations and the other to Public Procurement Regulations; (
2. b)awarded in accordance with these regulations, if one of the activities for which the contract is intended is subject to these regulations and the other to the Public Procurement Regulations, for the award of concession contracts; (
3. c)awarded in accordance with these regulations, if one of the activities for which the contract is intended is subject to these regulations and the other is not subject to either these regulations, the Public Procurement Regulations, or the Public Concessions Regulations; (
4. d)notwithstanding the provisions of regulation 43, where contracting entities choose to award a single contract, the provisions of this sub-regulation shall apply; (
5. e)where one of the activities concerned is covered by Article 346 of the TFEU or the Public Procurement of Contracting Authorities or Entities in the fields of Defence and Security Regulations, regulation 46 shall apply. 45.

(1)In the case of mixed contracts covering the same activity which have as their subject-matter procurement covered by these regulations and procurement covered by Article 346 of the TFEU or by the regulations governing Public Procurement of Contracting Authorities or Entities in the fields of Defence and Security Regulations, this regulation shall apply.

(2)Where the different parts of a given contract are objectively separable, contracting entities may choose to award separate PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS [ S.L.601.05 33 contracts for the separate parts or to award a single contract.

(3)Where contracting entities choose to award separate contracts for separate parts, the decision of which legal regime applies to any one of such separate contracts shall be taken on the basis of the characteristics of the separate part concerned.

(4)Where contracting entities choose to award a single contract, the following criteria shall apply to determine the applicable legal regime: (

1. a)where part of a given contract is covered by Article 346 of the TFEU, the contract may be awarded without applying these regulations, provided that the award of a single contract is justified for objective reasons; (
2. b)where part of a given contract is covered by Public Procurement of Contracting Authorities or Entities in the fields of Defence and Security Regulations, the contract may be awarded in accordance with those regulations, provided that the award of a single contract is justified for objective reasons: Provided that the application of this paragraph shall be without prejudice to the thresholds and exclusions for which the regulations identified above provide for.

(5)The decision to award a single contract shall not, however, be taken for the purpose of excluding contracts from the application of either these regulations or the Public Procurement of Contracting Authorities or Entities in the fields of Defence and Security Regulations.

(6)The provisions of sub-regulation

(4)(

1. a)shall apply to mixed contracts to which both paragraphs (
2. a)and (
3. b)of subregulation

(4)could otherwise apply.

(7)Where the different parts of a given contract are objectively not separable, where the contract includes elements to which Article 346 of the TFEU applies, it may be awarded without applying these regulations; otherwise it may be awarded in accordance with the Public Procurement of Contracting Authorities or Entities in the fields of Defence and Security Regulations. 46.

(1)In the case of contracts intended to cover several activities, contracting entities may award separate contracts for the purposes of each separate activity or to award a single contract. Where contracting entities choose to award separate contracts for separate parts, the decision of which legal regime applies to any one of such separate contracts shall be taken on the basis of the characteristics of the separate activity concerned.

(2)Where contracting entities choose to award a single contract, the provisions of sub-regulation

(3)shall apply. The choice between awarding a single contract and awarding a number of separate contracts shall not be made with the objective of excluding the contract or contracts from the scope of these regulations or the Public Procurement of Contracting Authorities or Entities in the fields of Defence and Security Regulations. S.L. 601.07 S.L. 601.07 S.L. 601.07 Procurement covering several activities and involving defence or security aspects. S.L. 601.07 34 [ S.L.601.05 S.L. 601.07 S.L. 601.07 PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

(3)In the case of contracts intended to cover an activity which is subject to these regulations and another which is subject to the Public Procurement of Contracting Authorities or Entities in the fields of Defence and Security Regulations, the contract may be awarded in accordance with the Public Procurement of Contracting Authorities or Entities in the fields of Defence and Security Regulations: Provided that the provisions of this sub-regulation shall be without prejudice to the thresholds and exclusions for which the Public Procurement of Contracting Authorities or Entities in the fields of Defence and Security Regulations provides.

(4)In the case of contracts intended to cover an activity which is subject to these regulations and another which is covered by Article 346 of the TFEU the contract may be awarded without applying these regulations.

(5)Contracts as set out under sub-regulation

(3), which in addition include procurement or other elements which are covered by Article 346 of the TFEU, may be awarded without applying these regulations.

(6)The application of sub-regulations

(3),

(4)and

(5)is subject to the condition that the award of a single contract is justified for objective reasons and the decision to award a single contract is not taken for the purpose of excluding contracts from the application of these regulations. Methods for calculating the estimated value of a contract. Contract Value 47.

(1)The calculation of the estimated value of a contract shall be based on the total amount payable, net of VAT, as estimated by the contracting entity. This calculation shall take account of the estimated total amount, including any form of option and any renewals of the contract.

(2)Where the contracting entity provides for prizes or payments to candidates or tenderers it shall take them into account when calculating the estimated value of the contract.

(3)Where the contracting entity is comprised of separate operational units, account shall be taken of the total estimated value for all the individual operational units: Provided that where a separate operational unit is independently responsible for its procurement or certain categories thereof, the values may be estimated at the level of the unit in question.

(4)The choice of the method used to calculate the estimated value o f a contract shall not be made with the intentio n of excluding it from the scope of these regulations.

(5)A contract shall not be subdivided with the effect of preventing it from falling within the scope of these regulations, unless justified by objective reasons.

(6)The estimated value shall be valid at the moment at which the call for competition is sent or, in cases where a call for PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS [ S.L.601.05 35 competition is not foreseen, at the moment at which the contracting authority commences the procurement procedure, for instance, where appropriate, by contacting economic operators in relation to the procurement.

1. With regard to framework agreements and dynamic purchasing systems, the estimated value to be taken into consideration shall be the maximum estimated value net of VAT of all the contracts envisaged for the total term of the agreement or system. Estimated value of framework agreements and dynamic purchasing systems.
2. In the case of innovation partnerships, the value to be taken into consideration shall be the maximum estimated value, net of VAT, of the research and development activities to take place during all stages of the envisaged partnership as well as of the supplies, services or works to be developed and procured at the end of the envisaged partnership. Value of innovation partnerships. 50.

(1)Contracting entities shall include in the estimated value of a works contract both the cost of the works and the value of any supplies or services necessary for the execution of the works, which they make available to the contractor. Value of public works.

(2)Where a proposed work or a proposed provision of services may result in contracts being awarded in the form of separate lots, account shall be taken of the total estimated value of all such lots.

(3)Where the aggregate value of lots is equal to or exceeds the threshold laid down in Schedule 5, these regulations shall apply to the awarding of each lot. 51.

(1)Where a proposal for the acquisition of similar supplies may result in contracts being awarded in the form of separate lots, account shall be taken of the total estimated value of all such lots. Similar supplies.

(2)Where the aggregate value of lots is equal to or exceeds the threshold laid down in Schedule 5, these regulations shall apply to the awarding of each lot.

(3)For the purpose of this Part, "similar supplies" means products which are intended for identical or similar uses. 52. Notwithstanding the provisions of regulation 50

(2)and

(3), contracting entities may waive such application in respect of lots the estimated value of which, net of VAT, is less than €80,000 for supplies or services or €1,000,000 for works, provided that the aggregate value of those lots does not exceed twenty per cent of the aggregate value of the lots as a whole. Waiver from application of regulation 50

(2)and

(3). 53. The estimated contract value in the renewal of supply or service contracts which are regular in nature or which are intended to be renewed within a given period shall be calculated as follows: Renewal of supply or service contracts. (

1. a)either the total actual value of the successive contracts of the same type awarded during the preceding twelve months or financial year adjusted to take account of the changes in quantity or value which would occur in 36 [ S.L.601.05 PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS the course of the twelve months following the initial contract; or (
2. b)the total estimated value of the successive contracts awarded during the twelve months following the first delivery, or during the financial year where that is longer than twelve months. Value of leasing products, hire, rental or hire purchase. 54. With regard to supply contracts relating to leasing, hire, rental or hire purchase of products, the value to be taken as a basis for calculating the estimated contract value shall be as follows: (
3. a)in case of fixed-term contracts, if that term is less than or equal to twelve months, the total estimated value for the term of the contract; (
4. b)in case of fixed-term contracts, if that term is greater than twelve months, the total value including the estimated residual value; (
5. c)in the case of contracts without a fixed term or contracts with a term which cannot be defined, the monthly value multiplied by 48. Calculation of the estimated contract value of the service contracts. 55.

(1)With regard to service contracts, the basis for calculating the estimated contract value shall be as follows: (

1. a)insurance services: the premium payable, and other forms of remuneration; (
2. b)banking and other financial services: the fees, commissions payable, interest and other forms of remuneration; (
3. c)design contracts: fees, commissions payable and other forms of remuneration.

(2)With regard to service contracts which do not indicate a total price, the basis for calculating the estimated contract value shall be as follows: (

1. a)in the case of fixed-term contracts, where that term is less than or equal to forty-eight months: the total value for their full term; (
2. b)in the case of contracts without a fixed term or with a term greater than forty-eight months: the monthly value multiplied by 48. Division of contracts into lots. Information on whether tenders may be submitted for one or several lots. Contracts into Lots 56. Contracting entities may decide to award a contract in the form of separate lots and may determine the size and subject-matter of such lots. 57. Contracting entities shall indicate, in the contract notice, in the invitation to confirm interest, or, where the means of calling for competition is a notice on the existence of a qualification system, in the invitation to tender or to negotiate, whether tenders may be submitted for one, for several or for all of the lots. PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS [ S.L.601.05 37 58. Contracting entities may, even where tenders may be submitted for several or all lots, limit the number of lots that may be awarded to one tenderer, provided that the maximum number of lots per tenderer is stated in the contract notice or in the invitation to confirm interest, to tender or to negotiate. Contracting entities shall indicate in the procurement documents the objective and nondiscriminatory criteria or rules they intend to apply for determining which lots will be awarded where the application of the award criteria would result in one tenderer being awarded more lots than the maximum number. Right to limit the number of lots to be awarded to one tenderer. 59. Where more than one lot may be awarded to the same tenderer, contracting entities may award contracts combining several or all lots where they have specified in the contract notice or in the invitation to confirm interest that they reserve the possibility of doing so and indicate the lots or groups of lots that may be combined. Award contracts combining several or all lots. Principles underlying the Procurement Process 60.

(1)The procurement document shall be written in clear and unambiguous terms so as to enable all interested parties to understand properly the terms and conditions of the process. Clarity of the procurement documents.

(2)Unless it has been requested in good time, the contracting entities shall supply to all tenderers taking part in the procurement procedure additional information relating to the specifications and any supporting documents not later than six days before the time limit fixed for the receipt of tenders.

(3)In the event of an accelerated open procedure as referred to in regulation 91

(3), the period mentioned in sub-regulation

(2)shall be four days. 61.

(1)Contracting entities shall treat economic operators equally and without discrimination and shall act in a transparent and proportionate manner. Equal treatment, transparency and proportionality.

(2)The design of the procurement shall not be made with the intention of excluding it from the scope of these regulations or of artificially narrowing competition. Competition shall be considered to be artificially narrowed where the design of the procurement is made with the intention of unduly favouring or disadvantaging certain economic operators.

(3)In so far as they are covered by Annexes 3, 4 and 5 and the General Notes to the European Union’s Appendix I to the GPA and by the other international agreements by which the Union is bound, contracting entities shall accord to the works, supplies, services and e c o n om i c o p e r a t o rs o f th e s i g na to r i e s t o t ho s e a g re e m e n t s treatment no less favourable than the treatment accorded to the works, supplies, services and economic operators of the Union. 62.

(1)Subject to the obligations established under these regulations and or any other law obliging the Director or the contracting entity to disclose information, a contracting entity and, or the Director shall not disclose information forwarded to it by economic operators which they have designated as confidential, Confidentiality. 38 [ S.L.601.05 PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS including, but not limited to, technical or trade secrets and the confidential aspects of tenders.

(2)Without prejudice to the provisions of these regulations, the following information shall not be considered as confidential: (

1. a)the name of the bidders and the individual names of the members of a group of economic operators who submitted a particular tender; (
2. b)the name of the sub-contractors; (
3. c)the documentation submitted by economic operators attesting that they comply with selection criteria; (
4. d)technical information which is already public.

(3)Contracting entities may impose on economic operators requirements aimed at protecting the confidential nature of information which the contracting entities make available throughout the procurement procedure, including information made available in connection with the operation of a qualification system, whether or not this has been the subject of a notice on the existence of a qualification system used as a means of calling for competition. Periodic indicative notice. Amended by: L.N. 26 of 2018 Added by: L.N. 26 of 2018. Publication 63.

(1)Contracting entities may make known their intentions of planned procurements through the publication of a periodic indicative notice. Those notices shall contain the information set out in Schedule 8, Part A, Section I. They shall be published either by the Publications Office of the European Union or by the contracting entities on their buyer profiles in accordance with regulation 2(b) of Schedule

1. Where the prior information notice is published by the contracting entities on their buyer profile, they shall send a notice of the publication on their buyer profile to the Publications Office of the European Union in accordance with regulation 3 of Schedule
2. Those notices shall contain the information set out in Schedule 8, Part B.

(2)When a call for competition is made by means of a periodic indicative notice in respect of restricted procedures and negotiated procedures with prior call for competition, the notice shall meet all the following requirements: (

1. a)it shall refer specifically to the supplies, works or services that will be the subject of the contract to be awarded; (
2. b)it shall indicate that the contract will be awarded by restricted or negotiated procedure without further publication of a call for competition and it shall invite interested economic operators to express their interest; (
3. c)it shall contain, in addition to the information set out in section I of Part A of Schedule 8, the information set out in section 2 of Part A of Schedule 8; (
4. d)it shall be sent for publication between thirty-five days PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS [ S.L.601.05 39 and twelve months prior to the date on which the invitation to confirm interest is sent.

(3)Such notices shall not be published on a buyer profile; however, the additional publication at national level pursuant to the provisions of regulation 67, if any, may be made on a buyer profile. Added by: L.N. 26 of 2018.

(4)The period covered by the periodic indicative notice shall be a maximum of twelve months from the date the notice is transmitted for publication; however, in the case of contracts for social and other specific services, the periodic indicative notice referred to in regulation 135

(1)(a)(ii) may cover a period which is longer than twelve months. Added by: L.N. 26 of 2018. 64.

(1)Contract notices may be used as a means of calling for competition in respect of all procedures. Contract notices.

(2)Contract notices shall contain the information set out in the relevant part of Schedule 11 and shall be published in accordance with regulation 66. 65.

(1)Not later than thirty days after the conclusion of a contract or of a framework agreement following the decision to award or conclude it, contracting entities shall send a contract award notice on the results of the procurement procedure.

(2)Such notice shall contain the information set out in Schedule 12 and shall be published in accordance with regulation 66.

(3)In the case of framework agreements concluded in accordance with regulations 143 to 146, contracting entities shall not be bound to send a notice of the results of the procurement procedure for each contract based on that agreement: Provided that contracting entities shall group notices of the results of the procurement procedure for contracts based on the framework agreement on a quarterly basis. In that case, contracting entities shall send the grouped notices within thirty days of the end of each quarter.

(4)Contracting entities shall send a contract award notice within thirty days after the award of each contract based on a dynamic purchasing system. They may, however, group such notices on a quarterly basis. In that case, they shall send the grouped notices within thirty days of the end of each quarter.

(5)The information provided in accordance with Schedule 19 and intended for publication shall be published in accordance with Schedule 10. Certain information on the contract award or the conclusion of the framework agreement may be withheld from publication where its release would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of a particular economic operator, public or private, or might prejudice fair competition between economic operators.

(6)In the case of contracts for research-and-development services ("R & D services"), the information concerning the nature Contract award notices. Amended by: L.N. 26 of 2018. 40 [ S.L.601.05 PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS and quantity of the services may be limited to: (

1. a)the indication "R & D services" where the contract has been awarded by a negotiated procedure without a call for competition in accordance with regulations 125(b), 126(
2. b)and 127(b); (
3. b)information at least as detailed as was indicated in the notice that was used as a means of calling for competition.

(7)Information provided in accordance with Schedule 12 and marked as not being intended for publication shall be published only in simplified form and in accordance with Schedule 10 for statistical purposes. Added by: L.N. 26 of 2018.

(8)Where the call for competition for the contract concerned has been made in the form of a periodic indicative notice and the contracting entity has decided that it will not award further contracts during the period covered by the periodic indicative notice, the contract award notice shall contain a specific indication to that effect. Form and manner of publication of notices. 66.

(1)Notices referred to in regulations 63 to 65 are obligatory only in respect to tenders with an estimated value which meets or exceeds the threshold established under Schedule 5 and shall include the information set out in Schedules 8 Part A and Part B, 11 and 12 in the format of standard forms, including standard forms for corrigenda.

(2)Notices referred to in regulations 63 to 65 shall be drawn up, transmitted by electronic means to the Publications Office of the European Union and published in accordance with Schedule 10.

(3)Contracting entities shall be able to supply proof of the dates on which notices are dispatched.

(4)The confirmation of the receipt of the notice and the publication of the information sent by the Publications Office of the European Union shall constitute proof of publication.

(5)Notices referred to in regulations 63 to 65 shall be published in full in the official language(s) of the institutions of the Union chosen by the contracting entity. That language version or those language versions shall constitute the sole authentic text(s).

(6)Contracting entities may publish notices for works, supply o r s e r vi c e c on t ra c t s t h a t a re n o t su bj e c t t o t he p u bl i c a t io n requirements laid down in these regulations provided that those notices are sent to the Publications Office of the European Union by electronic means in accordance with the format and procedures for transmission indicated in Schedule 10. Publication at national level. 67.

(1)Unless otherwise authorised by the Director, tenders issued with an estimated value which falls under regulation 30

(1)(b) shall be published through government’s e-procurement platform: Provided that if the contracting authority does not make use PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS [ S.L.601.05 41 of the government’s e-procurement platform it shall advertise the tender on the Gazette.

(2)Notices referred to in regulations 63 to 65 and the information contained therein shall not be published at national level before the publication pursuant to regulation 66: Provided that, publication may in any event take place at the national level where contracting entities have not been notified of the publication within forty-eight hours after confirmation of the receipt of the notice in accordance with regulation 66.

(3)Notices and advertisements published locally shall not contain information other than that contained in the notices dispatched to the Publications Office of the European Union or published on a buyer profile, but shall indicate the date of dispatch of the notice to the Publications Office of the European Union or its publication on the buyer profile.

(4)Periodic indicative notices shall not be published on a buyer profile before the dispatch to the Publications Office of the European Union of the notice of their publication in that form. They shall indicate the date of that dispatch. 68.

(1)Contracting entities that intend to organise a design contest with an estimated value which meets or exceeds the threshold established under Schedule 5 shall call for competition by means of a contest notice. Contest notice.

(2)Where contracting entities intend to award a subsequent service contract pursuant to regulation 126(g), this shall be indicated in the design contest notice.

(3)Contracting entities that have held a design contest shall make the results known by means of a notice.

(4)The call for competition shall include the information set out in Schedule 18 and the notice of the results of a design contest shall include the information set out in Schedule 19 in the format of standard forms.

(5)The notice of the results of a design contest shall be forwarded to the Publication Office of the European union within thirty days of the closure of the design contest.

(6)Where the release of information on the outcome of the contest would impede law enforcement, would be contrary to the public interest or would prejudice the legitimate commercial interests of a particular economic operator, whether public or private, or might prejudice fair competition between economic operators, such information may be withheld from publication.

(7)The provisions of regulation 66 shall also apply to notices relating to design contests. 69.

(1)Before launching a procurement procedure, contracting entities may conduct market consultations with a view to preparing the procurement and informing economic operators of their procurement plans and requirements. Preliminary market consultations. 42 [ S.L.601.05 PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS

(2)Subject to the provisions of these regulations, contracting entities may, for example, seek or accept advice from independent experts or authorities or from market participants. That advice may be used in the planning and conduct of the procurement procedure, provided that such advice does not have the effect of distorting competition and does not result in a violation of the principles of non-discrimination and transparency. Rules applicable to communication. Communications 70.

(1)All communication and information exchanged under these regulations, including electronic submission, shall be performed using electronic means of communication in accordance with the requirements of this regulation.

(2)The tools and devices to be used for communicating by electronic means, as well as their technical characteristics, shall be non-discriminatory, generally available and interoperable with the ICT products in general use and shall not restrict economic operators’ access to the procurement procedure.

(3)Notwithstanding the provisions of sub-regulations

(1)and

(2), contracting entities shall not be obliged to require electronic means of communication in the submission process in the following situations: (

1. a)due to the specialised nature of the procurement, the use of electronic means of communication would require specific tools, devices or file formats that are not generally available or supported by generally available applications; (
2. b)the applications supporting file formats that are suitable for the description of the tenders use file formats that cannot be handled by any other open or generally available applications or are under a proprietary licensing scheme and cannot be made available for downloading or remote use by the contracting authority; (
3. c)the use of electronic means of communication would require specialised office equipment that is not generally available to contracting entities; (
4. d)the procurement documents require the submission of physical or scale models which cannot be transmitted using electronic means.

(4)In respect of communications for which electronic means of communication are not used pursuant to sub-regulation

(3), communication shall be carried out by post or other suitable carrier or by a combination of post or other suitable carrier and electronic means.

(5)Contracting entities are not obliged to require electronic means of communication in the submission process to the extent that the use of means of communication other than electronic means is necessary either because of a breach of security of the electronic means of communications or for the protection of the PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS [ S.L.601.05 particularly sensitive nature of information requiring such a high level of protection that it cannot be properly ensured by using electronic tools and devices that are either generally available to economic operators or can be made available to them by alternative means of access within the meaning of sub-regulations

(10)and

(11).

(6)It shall be the responsibility of the contracting entities requiring, in acco rdance wi th sub -regulation

(3), m eans of communication other than electronic means in the submission process to indicate in the individual report referred to in regulation 172, as the case may be, the reasons for this requirement. Where applicable, contracting entities shall indicate in the individual report the reasons why use of means of communication other than electronic means has been considered necessary in application of sub-regulation

(5).

(7)Oral communication may be used in respect of communications other than those concerning the essential elements of a procurement procedure, provided that the content of the oral communication is documented to a sufficient degree. For this purpose, the essential elements of a procurement procedure include the procurement documents, requests for participation, c o n f i r m a t i o n s o f i n t e r e s t a n d t e n d e r s . I n p a r t i c u l a r, o r a l communications with tenderers which could have a substantial impact on the content and assessment of the tenders shall be documented to a sufficient extent and by appropriate means, such as written or audio records or summaries of the main elements of the communication.

(8)In all communication, exchange and storage of information, contracting entities shall ensure that the integrity of data and the confidentiality of tenders and requests to participate are preserved. T h e y sh al l e x a m i n e t h e c o n t e n t o f t e n d e r s an d r e q u es t s t o participate only after the time limit set for submitting them has expired.

(9)For public works contracts and design contests the contracting entities require the use of specific electronic tools, such as of building information electronic modelling tools or similar. In such cases the contracting entities shall offer alternative means of access, as provided for in sub-regulations

(10)and

(11), until such time as those tools become generally available within the meaning of sub-regulation

(2).

(10)Contracting entities may, where necessary, require the use of tools and devices which are not generally available, provided that the contracting entities offer alternative means of access.

(11)Contracting entities shall be deemed to offer suitable alternative means of access in any of the following situations, where they: (

1. a)offer unrestricted and full direct access free of charge by electronic means to those tools and devices from the date of publication of the notice in accordance with Schedule 10 or from the date when the invitation to confirm interest is sent. The text of the notice or the 43 44 [ S.L.601.05 PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS invitation to confirm interest shall specify the internet address at which those tools and devices are accessible; (
2. b)ensure that tenderers having no access to the tools and devices concerned, or no possibility of obtaining them within the relevant time limits, provided that the lack of access is not attributable to the tenderer concerned, may access the procurement procedure through the use of provisional tokens made available free of charge online; or (
3. c)support an alternative submission of tenders. channel for electronic

(12)In addition to the requirements set out in Schedule 7, the following rules shall apply to tools and devices for the electronic transmission and receipt of tenders and for the electronic receipt of requests to participate: (

1. a)information on specifications for the electronic submission of tenders and requests to participate, including encryption and time-stamping, shall be available to interested parties; (
2. b)contracting entities shall specify the level of security required for the electronic means of communication in the various stages of the specific procurement procedure; that level shall be proportionate to the risks attached: Provided that the requirement established under this paragraph shall be deemed to be satisfied when electronic means of communications are carried out through government’s e-procurement platform; (
3. c)where a contracting entity acting within an overall framework conclude that the level of risks, assessed under paragraph (b), is such that advanced electronic signatures as defined by Directive 1999/93/EC of the European Parliament and of the Council are required, contracting entities shall accept advanced electronic signatures supported by a qualified certificate, taking into account whether those certificates are provided by a certificate services provider, which is on a trusted list provided for in Commission Decision 2009/767/ EC, created with or without a secure signature creation device, subject to compliance with the following conditions: (
4. i)the contracting entities shall establish the required advanced signature format on the basis of formats established in Commission Decision 2011/130/EU and shall put in place necessary measures to be able to process these formats technically; in case a different format of electronic signature is used, the electronic signature or the electronic document carrier shall include information on existing validation PUBLIC PROCUREMENT OF ENTITIES IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS [ S.L.601.05 45 possibilities. The validation possibilities shall allow the contracting entity to validate online, free of charge and in a way that is understandable for non-native speakers, the received electronic signature as an advanced electronic signature supported by a qualified