(3)Technical specifications shall afford equal access for tenderers and shall not have the effect of creating unjustified obstacles to the opening up of procurement to competition.

(4)Without prejudice to either compulsory national technical rules (including those related to product safety) or the technical requirements to be met by Malta under international standardisation agreements in order to guarantee the interoperability required by those agreements, and provided they are compatible with Community law, technical specifications shall be drawn up: (

1. a)either by reference to technical specifications defined in this regulation and, in order of preference, to: - - national civil standards transposing European standards, European technical approvals, common civil technical specifications, national civil standards transposing international standards, other international civil standards, other technical reference systems established by the European standardisation bodies, or, where these do not exist, other national civil standards, national technical approvals or national technical specifications relating to the design, calculation and execution of the works and use of the products, civil technical specifications stemming from industry and widely recognised by it, or, the national "defence standards" defined in this regulation and defence material specifications similar to those standards; and every reference shall be followed by the expression "or equivalent"; or (
2. b)in terms of performance or functional requirements; the latter may include environmental characteristics: Provided that such parameters must be sufficiently precise to allow tenderers to determine the subjectmatter of the contract and to allow contracting authorities or entities to award the contract; or (
3. c)in terms of performance or functional requirements as mentioned in paragraph (b), with reference to the specifications mentioned in paragraph (
4. a)as a means of presuming conformity with such performance or functional requirements; or (
5. d)by referring to the specifications mentioned in paragraph (
6. a)for certain characteristics, and by referring to the performance or functional requirements mentioned in paragraph (
7. b)for other PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY [ S.L.601.07 characteristics.

(5)Where a contracting authority or entity makes use of the opti on of referri ng to t he speci ficat ions m ent ioned in subregulation

(4)(a), it can not reject a tender on the grounds that the pro du cts an d servi ces ten dere d for do n ot com ply wi th th e specifications to which it has referred, once the tenderer proves in its tender to the satisfaction of the contracting authority or entity, by whatever appropriate means, that the solutions which it proposes satisfy in an equivalent manner the requirements defined by the technical specifications. For the purpose of this regulation an appropriate means might be constituted by a technical dossier from the manufacturer or a test report from a recognised body.

(6)Where a contracting authority or entity uses the option laid down in sub-regulation

(4)to prescribe performance-related or functional requirements, it may not reject a tender for works, products or services which comply with a national standard transposing a European standard, with a European technical approval, a common technical specification, an international standard or a technical reference system established by a European s t a n d a r d i s a t i o n b o d y, i f t h e s e s p e c i f i c a t i o n s a d d r e s s t h e performance or functional requirements which it has laid down. In its tender, the tenderer must prove to the satisfaction of the contracting authority or entity and by any appropriate means that the work, product or service in compliance with the standard meets the performance or functional requirements of the contracting authority or entity.

(7)Where contracting authorities or entities lay down environmental characteristics in terms of performance or functional requirements as referred to in sub-regulation

(4)(b), they may use the detailed specifications, or, if necessary, parts thereof, as defined by European or (multi-) national eco-labels, or by any other ecolabel, provided that: (

1. a)those specifications are appropriate as a means of defining the characteristics of the supplies or services that are the object of the contract, (
2. b)the requirements for the label are drawn up on the basis of scientific information, (
3. c)the eco-labels are adopted using a procedure in which all stakeholders, such as government bodies, consumers, manufacturers, distributors and environmental organisations, can participate, and (
4. d)they are accessible to all interested parties. Contracting authorities or entities may indicate that the products and services bearing the eco-label are presumed to comply with the t echnica l specifications l aid down i n the contract documents; they must accept any other appropriate means of proof.

(8)"Recognised bodies", within the meaning of this regulation, a r e t e s t an d c a l i b r a t i o n l a b o r a t o r i e s , a n d c e r t i f i c a t i o n a n d 15 16 [ S.L.601.07 PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY i n s p e c t io n b od i e s w h i c h co m p l y w i t h a pp l i c a b le E u r op e a n standards. Contracting authorities or entities shall accept certificates from recognised bodies established in other Member States.

(9)Unless justified by the subject-matter of the contract, technical specifications shall not refer to a specific make or source, or a particular process, or to trade marks, patents, types or a specific origin or production with the effect of favouring or eliminating certain unde rtaking s or certa in p roducts. Such reference shall be permitted on an exceptional basis, where a sufficiently precise and intelligible description of the subjectmatter of the contract pursuant to sub-regulations

(4)and

(5)is not possible; such reference shall be accompanied by the words "or equivalent". Variants. 20.

(1)Where the criterion for award is that of the most economically advantageous tender, contracting authorities or entities may authorise tenderers to submit variants.

(2)Contracting authorities or entities shall indicate in the contract notice whether or not they authorise variants. Variants shall not be authorised without this indication.

(3)(

1. a)Contracting authorities or entities authorising variants shall state in the tender specifications the minimum requirements to be met by the variants and any specific requirements for their presentation. (
2. b)Only variants meeting the minimum requirements laid down by the contracting authorities or entities shall be taken into consideration.

(4)In procedures for awarding supply or service contracts, contracting authorities or entities which have authorised variants may not reject a variant on the sole ground that it would, if successful, lead either to a service contract rather than a supply contract, or to a supply contract rather than a service contract. Conditions for performance of contracts. 21. Contracting authorities or entities may lay down special conditions relating to the performance of a contract, provided that these are compatible with Community law and are indicated in the contract documentation (contract notices, contract documents, descriptive documents or supporting documents). These conditions may, in particular, concern subcontracting or seek to ensure the security of classified information and the security of supply required by the contracting authority or entity, in accordance with r e g ul a t io ns 2 2, 23 a nd 2 4 , o r ta ke en vi r on m e n ta l or s o c i a l considerations into account. Subcontracting. 22.

(1)The successful tenderer shall be free to select its subcontractors for all subcontracts that are not covered by the requirement referred to in sub-regulations

(3)and

(4), and shall in particular not be required to discrim inate against potential subcontractors on grounds of nationality.

(2)The contracting authority or entity may ask or may be required by a Member State to ask the tenderer: PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY [ S.L.601.07 (

1. a)to indicate in its tender any share of the contract it may intend to subcontract to third parties and any proposed subcontractor, as well as the subject-matter of the subcontracts for which they are proposed; and, or, (
2. b)to indicate any change occurring at the level of subcontractors during the execution of the contract.

(3)The contracting authority or entity may oblige or may be required by a Member State to oblige the successful tenderer to apply the provisions set out in Part III to all or certain subcontracts which the successful tenderer intends to award to third parties.

(4)The contracting authority or entity may ask or be required to ask the successful tenderer to subcontract to third parties a share of the contract. The contracting authority or entity that imposes such subcontracting shall express this minimal percentage in the form of a range of values, comprising a minimum and maximum percentage. The maximum percentage may not exceed 30% of the value of the contract. Such a range shall be proportionate to the object and value of the contract and the nature of the industry sector involved, including the level of competition in that market and the relevant technical capabilities of the industrial base.

(5)Any percentage of subcontracting falling within the range of values indicated by the contracting authority or entity shall be considered to fulfil the subcontracting requirement set out in subregulation

(4).

(6)Tenderers may propose to subcontract a share of the total value which is above the range required by the contracting authority or entity.

(7)The contracting authority or entity shall ask tenderers to specify in their tender which part or parts of their offer they intend to subcontract to fulfil the requirement referred to in sub-regulation

(1).

(8)The contracting authority or entity may ask or may be required by a Member State to ask tenderers to specify which part or parts of their offer they intend to subcontract beyond the required percentage, as well as the subcontractors they have already identified.

(9)The successful tenderer shall award subcontracts corresponding to the percentage which the contracting authority or entity requires it to subcontract in accordance with the provisions of Part III.

(10)It shall be lawful for the contracting authority or entity to reject the subcontractors selected by the tenderer at the stage of the award procedure of the main contract or by the successful tenderer during the performance of the contract; such rejection may only be based on criteria applied for the selection of the tenderers for the main contract. However if the contracting authority or entity rejects a subcontractor, it must produce a written justification to the tenderer or the successful tenderer, setting out why it considers that the subcontractor does not meet the criteria.

(11)Requirements referred to in sub-regulations

(2)to

(5)shall 17 18 [ S.L.601.07 PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY be indicated in the contract notices.

(12)Sub-regulations

(1)to

(5)shall be without prejudice to the question of the principal economic operator’s liability. Security information. 23. When contracts involve, require and, or contain classified information, the contracting authority or entity shall specify in the contract documentation (contract notices, contract documents, descriptive documents or supporting documents) the measures and requirements necessary to ensure the security of such information at the requisite level. The contracting authority or entity may require that the tender contain, inter alia, the following particulars: (

1. a)a commitment from the tenderer and the subcontractors already identified to appropriately safeguard the confidentiality of all classified information in their possession or coming to their notice throughout the duration of the contract and after termination or conclusion of the contract, in accordance with the relevant laws, regulations and administrative provisions; (
2. b)a commitment from the tenderer to obtain the commitment provided in paragraph (
3. a)from other subcontractors to which it will subcontract during the execution of the contract; (
4. c)sufficient information on subcontractors already identified to enable the contracting authority or entity to determine that each of them possesses the capabilities required to appropriately safeguard the confidentiality of the classified information to which they have access or which they are required to produce when carrying out their subcontracting activities; (
5. d)a commitment from the tenderer to provide the information required under paragraph (
6. c)on any new subcontractor before awarding a subcontract: Provided that measures and requirements referred to in paragraph (
7. b)have to comply with national provisions on security clearance. Security of supply. 24.

(1)The contracting authority or entity shall specify in the contract documentation (contract notices, contract documents, descriptive documents or supporting documents) its security of supply requirements. The contracting authority or entity may require that the tender contain, inter alia, the following particulars: (

1. a)certification or documentation demonstrating to the satisfaction of the contracting authority or entity that the tenderer will be able to honour its obligations regarding the export, transfer and transit of goods associated with the contract, including any supporting documentation received from the Member State(
2. s)concerned; (
3. b)the indication of any restriction on the contracting authority or entity regarding disclosure, transfer or use PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY [ S.L.601.07 19 of the products and services or any result of those products and services, which would result from export control or security arrangements; (
4. c)certification or documentation demonstrating that the organisation and location of the tenderer’s supply chain will allow it to comply with the requirements of the contracting authority or entity concerning security of supply set out in the contract documents, and a commitment to ensure that possible changes in its supply chain during the execution of the contract will not affect adversely compliance with these requirements; (
5. d)a commitment from the tenderer to establish and, or maintain the capacity required to meet additional needs required by the contracting authority or entity as a result of a crisis, according to terms and conditions to be agreed; (
6. e)any supporting documentation received from the tenderer’s national authorities regarding the fulfilment of additional needs required by the contracting authority or entity as a result of a crisis; (
7. f)a commitment from the tenderer to carry out the maintenance, modernisation or adaptation of the supplies covered by the contract; (
8. g)a commitment from the tenderer to inform the contracting authority or entity in due time of any change in its organisation, supply chain or industrial strategy that may affect its obligations to that authority or entity; (
9. h)a commitment from the tenderer to provide the contracting authority or entity, according to terms and conditions to be agreed, with all specific means necessary for the production of spare parts, components, assemblies and special testing equipment, including technical drawings, licenses and instructions for use, in the event that it is no longer able to provide these supplies.

(2)A tenderer may not be required to obtain a commitment from a Member State that would prejudice that Member State’s freedom to apply, in accordance with relevant international or Community law, its national export, transfer or transit licensing criteria in the circumstances prevailing at the time of such a licensing decision. 25.

(1)The contracting authority or entity may state in the contract documents, or be obliged by the Director to do so, the body or bodies from which a candidate or tenderer may obtain the appropriate information on the obligations relating to taxes, to environmental protection, to the employment protection provisions and to the working conditions which are in force in Malta, or the region or locality in which the services are to be provided and which shall be applicable to the services provided during the Obligations relating to taxes, environmental protection, employment protection provisions and working conditions. 20 [ S.L.601.07 PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY performance of the contract.

(2)A contracting authority which supplies the information referred to in sub-regulation

(1)shall request the tenderers or candidates in the contract award procedure to indicate that they h a v e t a k e n a c c o u n t , w h e n d r a w i n g u p t h e i r t e n d e r, o f t h e obligations relating to employment protection provisions and the working conditions which are in force in the place where the service is to be provided.

(3)Sub-regulation

(1)shall be without prejudice to the application of the provisions of regulation 50 concerning the examination of abnormally low tenders. Chapter V Procedures Procedures to be applied. 26.

(1)In awarding contracts, contracting authorities or entities shall apply the national procedures adjusted for the purposes of these regulations.

(2)It shall be lawful for contracting authorities or entities for the purpose of awarding the contract to apply the restricted procedure or the negotiated procedure with publication of a contract notice.

(3)Under the circumstances referred to in regulation 28, contracting authorities or entities may award their contracts by means of a competitive dialogue.

(4)In the specific cases and circumstances referred to expressly in regulation 29, the contracting authorities or entities may apply a negotiated procedure without publication of a contract notice. Negotiated procedure with publication of a contract notice. 27.

(1)In negotiated procedures with publication of a contract notice, contracting authorities or entities shall negotiate with tenderers the tenders submitted by them in order to adapt them to the requirements they have set in the contract notice, the contract documents and supporting documents, if any, and to seek out the best tender in accordance with regulation 48.

(2)During the negotiations, contracting authorities or entities shall ensure the equal treatment of all tenderers. In particular, they shall not provide information in a discriminatory manner which may give some tenderers an advantage over others.

(3)Contracting authorities or entities may provide for the negotiated procedure to take place in successive stages in order to reduce the number of tenders to be negotiated by applying the award criteria set out in the contract notice or the contract documents. The contract notice or the contract documents shall indicate whether or not this option has been used. Competitive dialogue. 28.

(1)In case of particularly complex contracts, where contracting authorities consider that the use of the open or restricted procedure will not allow the award of the contract, the contracting authorities may make use of the competitive dialogue PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY [ S.L.601.07 in accordance with this regulation: Provided that a public contract shall be awarded on the sole basis of the award criterion for the most economically advantageous tender.

(2)Contracting authorities or entities shall publish a contract notice setting out their needs and requirements, which they shall define in that notice and, or in a descriptive document.

(3)Contracting authorities or entities shall open, with the candidates selected in accordance with the relevant provisions of regulation 39 to 47, a dialogue, the aim of which shall be to identify and define the means best suited to satisfying their needs. They may discuss all aspects of the contract with the chosen candidates during this dialogue.

(4)During the dialogue mentioned in the sub-regulation

(3), contracting authorities or entities shall ensure equality of treatment a m o n g a l l t e n d e r e r s . I n p a r t i c u l a r, t h e y s h a l l n o t p r o v i d e information in a discriminatory manner which may give some tenderers an advantage over others.

(5)Contracting authorities or entities may not reveal to the other partici pant s so lut ions pro posed o r o ther con fid ential information communicated by a candidate participating in the dialogue, without the agreement of that candidate.

(6)Contracting authorities or entities may provide for the procedure to take place in successive stages in order to reduce the number of solutions to be discussed during the dialogue stage by applying the award criteria set out in the contract notice or the descriptive document. The contract notice or the descriptive document shall indicate that recourse may be had to this option.

(7)The contracting authority or entity shall continue such dialogue until it can identify the solution or solutions, if necessary after comparing them, which are likely to meet its needs.

(8)Having declared that the dialogue is concluded and having so informed the participants, contracting authorities or entities shall ask the participants to submit their final tenders on the basis of the solution or solutions presented and specified during the dialogue. These tenders shall contain all the elements required and necessary for the performance of the project.

(9)The tenders may be clarified, specified and fine-tuned at the request of the contracting authority or entity. However, such clarification, specification, fine-tuning or additional information may not involve changes to the basic features of the tender or the call for tender, variations in which are likely to distort competition or have a discriminatory effect.

(10)Contracting authorities or entities shall assess the tenders received on the basis of the award criteria laid down in the contract notice or the descriptive document and shall choose the most economically advantageous tender in accordance with regulation 48.

(11)At the request of the contracting authority or entity, the 21 22 [ S.L.601.07 PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY tenderer identified as having submitted the most economically advantageous tender may be asked to clarify aspects of the tender or confirm commitments contained in the tender, provided this does not have the effect of modifying substantial aspects of the tender or of the call for tenders and does not risk distorting competition or causing discrimination.

(12)The contracting authorities or entities may specify prices or payments to the participants in the dialogue. Cases justifying use of the negotiated procedure without publication of a contract notice. 29. Contracting authorities or entities may award contracts by a negotiated procedure without prior publication of a contract notice and shall justify the use of this procedure in the contract award notice as required in regulation 31

(3)in the following cases: (

1. a)for works contracts, supply contracts and service contracts: (
2. i)when no tenders or no suitable tenders or no applications have been submitted in response to a restricted procedure, a negotiated procedure with prior publication of a contract notice or a competitive dialogue, provided that the initial conditions of the contract are not substantially altered and on condition that a report is sent to the Commission, if it so requests; (
3. ii)in the event of irregular tenders or the submission of tenders which are unacceptable under national provisions compatible with regulations 6, 20, 22 to 25 and Chapter VII of Part II, in response to a restricted procedure, a negotiated procedure with publication or a competitive dialogue, insofar as: 1. the original terms of the contract are not substantially altered, and 2. they include in the negotiated procedure of all, and only, the tenderers which satisfy the criteria of regulations 40 to 47 and which, during the prior restricted procedure or competitive dialogue, had submitted tenders in accordance with the formal requirements of the tendering procedure; (iii) when the periods laid down for the restricted procedure and negotiated procedure with publication of a contract notice, including the shortened periods referred to in regulation 34

(9), are incompatible with the urgency resulting from a crisis. This may apply for instance in the cases referred to in regulation 24

(1)(d); (

1. iv)insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting authorities or entities in question, the time-limit for the PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY (
2. v)[ S.L.601.07 restricted procedure or the negotiated procedure with publication of a contract notice, including the shortened time-limits as referred to in regulation 34

(7), cannot be complied with. The circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting authority or entity; when, for technical reasons or reasons connected with the protection of exclusive rights, the contract may be awarded only to a particular economic operator; (

1. b)for service contracts and supply contracts: (
2. i)for research and development services other than those referred to in regulation 14; (
3. ii)for products manufactured purely for the purpose of research and development, with the exception of quantity production to establish commercial viability or recover research and development costs; (
4. c)for supply contracts: (
5. i)for additional deliveries by the original supplier which are intended either as a partial replacement of normal supplies or installations or as the extension of existing supplies or installations where a change of supplier would oblige the contracting authority or entity to acquire material having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance: Provided that the length of such contracts, as well as that of recurrent contracts, may not exceed five years, except in exceptional circumstances determined by taking into account the expected service life of any delivered items, installations or systems, and the technical difficulties which a change of supplier may cause; (
6. ii)for supplies quoted and purchased on a commodity market; (iii) for the purchase of supplies on particularly advantageous terms, from either a supplier which is definitively winding up its business activities, or the receivers or liquidators of a bankruptcy, an arrangement with creditors, or a similar procedure under national laws or regulations; (
7. d)for works contracts and service contracts: (
8. i)for additional works or services not included in the project initially considered or in the original contract but which have, through unforeseen 23 24 [ S.L.601.07 PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY circumstances, become necessary for the performance of the works or services described therein, on condition that the award is made to the economic operator performing such works or services: 1. when such additional works or services cannot be technically or economically separated from the original contract without major inconvenience to the contracting authorities or entities, or 2. when such works or services, although separable from the performance of the original contract, are strictly necessary for its completion. However, the aggregate value of contracts awarded for additional works or services may not exceed 50% of the amount of the original contract; (
9. ii)for new works or services consisting in the repetition of similar works or services entrusted to the economic operator to which the same contracting authorities or entities awarded an original contract, provided that such works or services are in conformity with a basic project for which the original contract was awarded according to the restricted procedure, the negotiated procedure with publication of a contract notice or a competitive dialogue: Provided that as soon as the first project is put up for tender, the possible use of this procedure shall be disclosed, and the total estimated cost of subsequent works or services shall be taken into consideration by the contracting authorities or entities when they apply regulation 9: Provided further that this procedure may be used only during the five years following the conclusion of the original contract, except in exceptional circumstances determined by taking into account the expected service life of any delivered items, installations or systems, and the technical difficulties which a change of supplier may cause; (
10. e)for contracts related to the provision of air and maritime transport services for the armed forces or security forces of Malta deployed or to be deployed abroad, when the contracting authority or entity has to procure such services from economic operators that guarantee the validity of their tenders only for such short periods that the time-limit for the restricted procedure or the negotiated procedure with publication of a contract notice, including the shortened timelimits as referred to in regulation 34

(9), cannot be PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY [ S.L.601.07 complied with. 30.

(1)Contracting authorities or entities may conclude framework agreements.

(2)For the purpose of concluding a framework agreement, co ntract ing aut hori ties or entit ies sh al l follow the rules of procedure referred to herein for all phases up to the award of contracts based on that framework agreement. The parties to the framework agreement shall be chosen by applying the award criteria set in accordance with regulation 48.

(3)Contracts based on a framework agreement shall be awarded in accordance with the procedures laid down in subregulations

(8)and

(9). Those procedures may be applied only between the contracting authorities or entities and the economic operators originally party to the framework agreement.

(4)When awarding contracts based on a framework agreement, the parties may under no circumstances make substantial amendments to the terms laid down in that framework agreement, in particular in the case referred to in sub-regulation

(8).

(5)The term of a framework agreement may not exceed seven years, except in exceptional circumstances determined by taking into account the expected service life of any delivered items, installations or systems, and the technical difficulties which a change of supplier may cause.

(6)For the exceptional circumstances mentioned in subregulation

(5), the contracting authorities or entities shall provide an appropriate justification for those circumstances in the notice referred to in regulation 31

(3).

(7)Contracting authorities or entities may not use framework agreements improperly or in such a way as to prevent, restrict or distort competition.

(8)Where a framework agreement is concluded with a single economic operator, contracts based on that agreement shall be awarded within the limits of the terms laid down in the framework agreement. For the award of those contracts, contracting authorities or entities may consult the operator party to the framework agreement in writing, requesting it to supplement its tender as necessary.

(9)Where a framework agreement is concluded with several economic operators, the latter must be at least three in number, insofar as there is a sufficient number of economic operators that satisfy the selection criteria and, or of admissible tenders that meet the award criteria.

(10)Contracts based on framework agreements concluded with several economic operators may be awarded either: (

1. a)by application of the terms laid down in the framework agreement without reopening competition, or (
2. b)where not all the terms are laid down in the framework agreement, when the parties are again in competition Framework agreements. 25 26 [ S.L.601.07 PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY on the basis of the same and, if necessary, more precisely formulated terms, and, where appropriate, other terms referred to in the contract documents of the framework agreement, in accordance with the following procedure: (
3. i)for every contract to be awarded, contracting authorities or entities shall consult in writing the economic operators capable of performing the contract; (
4. ii)contracting authorities or entities shall fix a time-limit which is sufficiently long to allow tenders for each specific contract to be submitted, taking into account factors such as the complexity of the subject-matter of the contract and the time needed to submit tenders; (iii) tenders shall be submitted in writing and their content remain confidential until the stipulated time-limit for reply has expired; (
5. iv)contracting authorities or entities shall award each contract to the tenderer which has submitted the best tender on the basis of the award criteria set out in the contract documents of the framework agreement. Chapter VI Rules on advertising and transparency Section 1 Publication of notices Notices. 31.

(1)Contracting authorities or entities may make known, by means of a prior information notice published by the Commission or by themselves on their ‘buyer profile’, as described in point 2 of Schedule V: (

1. a)where supplies are concerned, the estimated total value of the contracts or the framework agreements by product area which they intend to award over the following twelve months. The product area shall be established by the contracting authorities or entities by reference to the CPV nomenclature; (
2. b)where services are concerned, the estimated total value of the contracts or framework agreements in each of the categories of services which they intend to award over the following twelve months; (
3. c)where works are concerned, the essential characteristics of the contracts or framework agreements which they intend to award.

(2)The notices referred to in sub-regulation

(1)shall be sent to the Commission or published on the buyer profile at the earliest opportunity after the decision approving the project for which the PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY [ S.L.601.07 27 contracting authorities or entities intend to award contracts or framework agreements.

(3)Contracting authorities or entities that publish a prior information notice on their buyer profiles shall send the Commission, electronically, a notice of publication of the prior information notice on a buyer profile, in accordance with the format and detailed procedures for sending notices set out in point 3 of Schedule V.

(4)Publication of the notices referred to in sub-regulation

(1)shall be compulsory only where the contracting authorities or entities take the option of shortening the time-limits for the receipt of tenders as laid down in regulation 34

(4).

(5)Sub-regulations

(1)to

(4)shall not apply to negotiated procedures without the prior publication of a contract notice.

(6)Contracting authorities or entities which wish to award a contract or a framework agreement by restricted procedure, negotiated procedure with the publication of a contract notice or a competitive dialogue shall make known their intention by means of a contract notice.

(7)Contracting authorities or entities which have awarded a contract or concluded a framework agreement shall send a notice of the results of the award procedure no later than forty-eight days after the award of the contract or the conclusion of the framework agreement.

(8)In the case of framework agreements concluded in accordance with regulation 30, the contracting authorities or entities shall not be bound to send a notice of the results of the award procedure for each contract based on that agreement.

(9)Certain information on the contract award or the conclusion of the framework agreement may be withheld from publication where release of such information would impede law enforcement or otherwise be contrary to the public interest, in particular defence and, or security interests, would harm the legitimate commercial interests of economic operators, public or private, or might prejudice fair competition between them. 32. Contracting authorities or entities may publish, in accordance with regulation 33, notices concerning contracts which are not subject to the publication requirement laid down in these regulations. Non-mandatory publication. 33.

(1)Notices shall include the information referred to in Schedule III and, where appropriate, any other information deemed useful by the contracting authority or entity in the format of the standard forms adopted by the Commission in accordance with the advisory procedure referred to in Article 67

(2)of Directive 2009/ 81/EC of the European Parliament and of the Council. Form and manner of publication of notices.

(2)Notices sent by contracting authorities or entities to the Commission shall be sent either by electronic means in accordance with the format and procedures for transmission set out in point 3 of Schedule V, or by other means. In the event of recourse to the 28 [ S.L.601.07 PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY accelerated procedure set out in regulation 34

(9), notices must be sent either by fax or by electronic means, in accordance with the format and procedures for transmission set out in point 3 of Schedule V.

(3)Notices shall be published in accordance with the technical characteristics for publication set out in point 1(a) and (b) of Schedule V.

(4)Notices drawn up and transmitted by electronic means in accordance with the format and procedures for transmission set out in point 3 of Schedule V shall be published no later than five days after they are sent.

(5)Notices which are not transmitted by electronic means in accordance with the format and procedures for transmission set out in point 3 of Schedule V shall be published no later than twelve days after they are sent, or, in the case of the accelerated procedure referred to in regulation 34

(9), no later than five days after they are sent.

(6)Contract notices shall be published in full in the English language which shall constitute the sole authentic text. A summary of the important elements of each notice shall be published in the other official languages.

(7)Notices and their contents may not be published by the contracting authorities or entities on a buyer profile before the date on which they are sent to the Commission.

(8)The notices published shall not contain information other than that contained in the notices sent to the Commission or published on a buyer profile in accordance with regulation 31

(1)(a), but shall mention the date of dispatch of the notice to the Commission or its publication on a buyer profile.

(9)Prior information notices may not be published on a buyer profile before the dispatch to the Commission of the notice of their publication in that form. The notice shall mention the date of that dispatch.

(10)The content of notices not sent by electronic means in accordance with the format and procedures for transmission set out in point 3 of Schedule V shall be limited to approximately 650 words.

(11)Contracting authorities or entities must be able to supply proof of the dates on which notices are dispatched.

(12)The Commission shall give the contracting authority or entity confirmation of the publication of the information sent, mentioning the date of such publication. Such confirmation shall constitute proof of publication. PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY [ S.L.601.07 29 Section 2 Time limits 34.

(1)When fixing the time-limits for receipt of requests to participate and tenders, contracting authorities or entities shall take particular account of the complexity of the contract and the time required for drawing up tenders, without prejudice to the minimum time-limits set by this regulation.

(2)In restricted procedures, negotiated procedures with the publication of a contract notice and use of a competitive dialogue, the minimum time-limit for receipt of requests to participate shall be thirty-seven days from the date on which the contract notice is sent.

(3)In the case of restricted procedures, the minimum timelimit for the receipt of tenders shall be forty days from the date on which the invitation is sent.

(4)When contracting authorities or entities have published a prior information notice, the minimum time-limit for the receipt of tenders under sub-regulation

(3)may, as a general rule, be shortened to thirty-six days, but under no circumstances to less than twenty-two days. The time-limit shall run from the date on which the invitation to tender was sent.

(5)The shortened time-limits referred to in sub-regulation

(1)shall be permitted, provided that the prior information notice has included all the information required for the contract notice set out in Schedule III, insofar as that information is available at the time the notice is published and that the prior information notice was sent for publication between fifty-two days and twelve months before the date on which the contract notice was sent.

(6)Where notices are drawn up and transmitted by electronic means in accordance with the format and procedure for sending notices set out in point 3 of Schedule V, the time-limit for the receipt of the requests to participate referred to in sub-regulation

(2)may be shortened by seven days.

(7)The time-limits for receipt of tenders referred to in subregulation

(3)may be reduced by five days where the contracting authority or entity offers unrestricted and full direct access by electronic means to the contract documents and any supporting documents from the date of publication of the notice in accordance with Schedule V, specifying in the text of the notice the internet address at which this documentation is accessible. This reduction may be added to that referred to in subregulation

(6).

(8)If, for whatever reason, the contract documents and supporting documents or additional information, although requested in good time, are not supplied within the time-limits set out in regulation 35, or where tenders can be made only after a visit to the site or after on-the-spot inspection of the documents supporting the contract documents, the time-limits for the receipt of Time-limits for receipt of requests to participate and for receipt of tenders. 30 [ S.L.601.07 PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY tenders shall be extended so that all economic operators concerned may be aware of all the information needed to produce tenders.

(9)In the case of restricted procedures and negotiated procedures with publication of a contract notice, where urgency renders impracticable the minimum time-limits laid down in this regulation, contracting authorities or entities may fix: (

1. a)a time-limit for receipt of requests to participate which may not be less than fiften days from the date on which the contract notice is dispatched, or less than ten days if the notice was sent by electronic means, in accordance with the format and procedure for sending notices set out in point 3 of Schedule V; and (
2. b)in the case of restricted procedures, a time-limit for receipt of tenders which shall not be less than ten days from the date of the invitation to tender. Section 3 Information content and means of transmission Invitations to tender, negotiate or participate in a dialogue. 35.

(1)In restricted procedures, negotiated procedures with the publication of a contract notice and competitive dialogues, the contracting authorities or entities shall simultaneously and in writing invite the selected candidates to submit their tenders or to negotiate, or, in the case of a competitive dialogue, to take part in the dialogue.

(2)The invitation to the candidates shall include either: (

1. a)a copy of the contract documents or of the descriptive document and any supporting documents, or (
2. b)a reference to accessing the documents referred to in paragraph (
3. a)when they are made directly available by electronic means in accordance with regulation 34

(7).

(3)Where the contract documents, the descriptive document and, or any supporting documents are held by an entity other than the contracting authority or entity responsible for the award procedure, the invitation shall state the address from which that documentation may be requested and, if appropriate, the closing date for requesting such documents, the sum payable for obtaining them and any payment procedures. The competent department shall send that documentation to the economic operator without delay upon receipt of a request.

(4)The additional information on the contract documents, the descriptive document and, or the supporting documents shall be sent by the contracting authority or entity or the competent department not less than six days before the deadline fixed for the receipt of tenders, provided that it is requested in good time. In the event of a restricted or an accelerated procedure, that period shall be four days.

(5)In addition to the particulars provided for in subregulations

(2),

(3)and

(4), the invitation shall contain at least: PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY [ S.L.601.07 (

1. a)a reference to the contract notice published; (
2. b)the deadline for receipt of tenders, the address to which the tenders must be sent and the language or languages in which the tenders must be drawn up. In the case of a competitive dialogue, this information shall not be contained in the invitation to take part in the dialogue, but in the invitation to submit a tender; (
3. c)in the case of a competitive dialogue, the date and the address set for the start of the consultation stage and the language or languages used; (
4. d)an indication of any documents to be annexed, either to support the verifiable statements provided by the candidate in accordance with regulation 39, or to supplement the information provided for in that regulation under the same conditions as those laid down in regulations 42 and 43; (
5. e)the relative weighting of criteria for the award of the contract or, where appropriate, the descending order of importance of the criteria used to define the economically most advantageous tender, if they are not given in the contract notice, the contract documents or the descriptive document. 36.

(1)The contracting authorities or entities shall, at the earliest opportunity, inform candidates and tenderers of decisions reached concerning the award of a contract or the conclusion of a framework agreement, including the grounds for any decision not to award a contract or conclude a framework agreement for which there has been competitive tendering or to recommence the procedure; that information shall be given in writing upon request to the contracting authorities or entities.

(2)At the request of the party concerned, the contracting authority or entity shall, subject to sub-regulation

(3), at the earliest opportunity and at the latest within fifteen days of receipt of the written request for information, inform the parties as follows: (

1. a)any unsuccessful candidate of the reasons for the rejection of the application; (
2. b)any unsuccessful tenderer of the reasons for the rejection of the tender, including, in particular, for the cases referred to in regulation 19

(4)and

(5), the reasons for its decision of non-equivalence or its decision that the works, supplies or services do not meet the performance or functional requirements, and in the cases referred to in regulations 23 and 24, the reasons for its decision of non-conformity with the requirements of security of information and security of supply; (c) any tenderer which has made an admissible tender that has been rejected, of the characteristics and relative advantages of the tender selected, as well as the name of the successful tenderer or the parties to the Information for candidates and tenderers. 31 32 [ S.L.601.07 PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY framework agreement.

(3)Contracting authorities or entities may decide to withhold certain information on the contract award or the conclusion of the framework agreements referred to in sub-regulation

(1)where release of such information would impede law enforcement or otherwise be contrary to the public interest, in particular defence and, or security interests, would prejudice the legitimate commercial interests of economic operators, whether public or private, or might prejudice fair competition between them. Section 4 Communication Rules applying to communication. 37.

(1)All communication and information exchange referred to in this Title may be made by post, fax, electronic means in accordance with sub-regulations

(4)and

(5), telephone in the cases and circumstances referred to in sub-regulation

(6), or a combination of those means, according to the choice of the contracting authority or entity.

(2)The means of communication chosen must be generally available and thus not restrict the access of economic operators to the tendering procedure.

(3)Communication and the exchange and storage of information shall be carried out in such a way as to ensure that the integrity of data and the confidentiality of requests to participate and tenders are preserved, and that the contracting authorities or entities examine the content of requests to participate and tenders only after the time-limit set for submitting them has expired.

(4)The tools to be used for communicating by electronic means, as well as their technical characteristics, must be nond i s c r i m i n a t o r y, g e n e r a l l y a v a i l a b l e a n d c o m p a t i b l e w i t h information and communication technology products in general use.

(5)The following rules shall apply to devices for the electronic transmission and receipt of tenders and devices for the electronic receipt of requests to participate: (

1. a)information regarding the specifications necessary for the electronic submission of tenders and requests to participate, including encryption, shall be available to interested parties. Moreover, devices for the electronic receipt of tenders and requests to participate shall conform to the requirements of Schedule VII; (
2. b)contracting authorities or entities may, in compliance with Article 5 of Directive 1999/93/EC, require electronic tenders to be accompanied by an advanced electronic signature, in conformity with paragraph 1 thereof; (
3. c)contracting authorities or entities may introduce or maintain voluntary arrangements for accreditation intended to improve the level of the certification PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY [ S.L.601.07 33 service provided for such devices; (
4. d)tenderers or candidates shall undertake to submit, before expiry of the time-limit laid down for submission of tenders or requests to participate, the documents, certificates and declarations referred to in regulations 40 to 45 and regulation 47, if they do not exist in electronic format.

(6)The following rules shall apply to the transmission of requests to participate: (

1. a)requests to participate in procedures for the award of contracts may be made in writing or by telephone; (
2. b)where requests to participate are made by telephone, a written confirmation must be sent before expiry of the time-limit set for their receipt; (
3. c)contracting authorities or entities may require that requests for participation made by fax must be confirmed by post or electronic means where this is necessary for the purposes of legal proof. Any such requirement, together with the time-limit by which it must be met, must be stated by the contracting authority or entity in the contract notice. Section 5 Reports 38.

(1)For every contract and framework agreement, the contracting authorities or entities shall draw up a written report to confirm that the selection procedure was undertaken in a transparent and non-discriminatory manner, which shall include at least the following: (

1. a)the name and address of the contracting authority or entity and the subject and value of the contract or framework agreement; (
2. b)the award procedure chosen; (
3. c)in the case of a competitive dialogue, the circumstances justifying the use of this procedure; (
4. d)in the case of a negotiated procedure without prior publication of a contract notice, the circumstances referred to in regulation 29 which justify the use of this procedure; if appropriate, justification for exceeding the time-limits laid down in the proviso to regulation 29(c)(
5. i)and the second proviso to regulation 29(d)(
6. ii)and for exceeding the 50% limit laid down in the concluding provision of regulation 29(d)(i); (
7. e)if appropriate, the reasons for the agreement lasting more than seven years; (
8. f)framework the name of the candidates chosen and the reason for this choice; (
9. g)the name of the candidates excluded and the reasons Content of reports. 34 [ S.L.601.07 PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY for their rejection; (
10. h)the reasons for the rejection of tenders; (
11. i)the name of the successful tenderer and the reasons why its tender was selected, and, if known, the share of the contract or framework agreement which the successful tenderer intends, or will be required, to subcontract to third parties; (
12. j)if necessary, the reasons why the contracting authority or entity decided not to award a contract or framework agreement.

(2)Contracting authorities or entities shall take appropriate steps to document the progress of award procedures conducted by electronic means.

(3)The report, or the main features of it, shall be communicated to the Commission, if it so requests. Chapter VII Conduct of the procedure Section 1 General Provisions Verification of the suitability and choice of participants and award of contracts. 39.

(1)Contracts shall be awarded on the basis of the criteria laid down in regulations 48 and 50, taking into account regulation 20, after the suitability of the economic operators not excluded under regulations 40 or 41 has been checked by contracting authorities or entities in accordance with the criteria of economic and financial standing, of professional and technical knowledge or ability referred to in regulations 42 to 47 and, where appropriate, with the non-discriminatory rules and criteria referred to in subregulation

(3).

(2)Contracting authorities or entities may require candidates to meet minimum capacity levels in accordance with regulations 42 and 43 and the extent of the information referred to in regulations 42 and 43 and the minimum levels of ability required for a specific contract must be related and proportionate to the subject-matter of the contract. These minimum levels shall be indicated in the contract notice.

(3)In restricted procedures, negotiated procedures with publication of a contract notice and competitive dialogues, contracting authorities or entities may limit the number of suitable candidates they will invite to tender or with which they will conduct a dialogue. In this case: (

1. a)the contracting authorities or entities shall indicate in the contract notice the objective and nondiscriminatory criteria or rules they intend to apply, the minimum number of candidates they intend to invite and, where appropriate, the maximum number. The minimum number of candidates they intend to PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY [ S.L.601.07 35 invite may not be less than three; (
2. b)subsequently, the contracting authorities or entities shall invite a number of candidates at least equal to the minimum number set in advance, provided a sufficient number of suitable candidates is available.

(4)Where the number of candidates meeting the selection criteria and the minimum levels of ability is below the minimum number, the contracting authority or entity may continue the procedure by inviting the candidate or candidates with the required capabilities.

(5)If the contracting authority or entity considers that the number of suitable candidates is too low to ensure genuine competition, it may suspend the procedure and re-publish the initial contract notice in accordance with regulations 31

(2)and 33, fixing a new deadline for the submission of requests to participate. In this case, the candidates selected upon the first publication and those selected upon the second shall be invited in accordance with regulation 35. This option shall be without prejudice to the ability of the contracting authority or entity to cancel the ongoing procurement procedure and launch a new procedure.

(6)In the context of an award procedure, the contracting authority or entity may not include economic operators other than those which made a request to participate, or candidates without the requisite capabilities.

(7)Where the contracting authorities or entities exercise the option of reducing the number of solutions to be discussed or of tenders to be negotiated, as provided for in regulations 27

(6)and 28

(4), they shall do so by applying the award criteria stated in the contract notice or the contract documents. In the final stage, the number arrived at shall make for genuine competition insofar as there are enough solutions or suitable candidates. Section 2 Criteria for qualitative selection 40.

(1)Any candidate or tenderer which has been the subject of a conviction by final judgment of which the contracting authority or entity is aware, for one or more of the reasons listed hereunder, shall be excluded from participation in a contract: (a) participation in a criminal organisation,

(1)of Joint Action 98/733/JHA; (b) corruption,

(2)(c) of the Treaty on European Union, the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union, and Article 2

(1)of Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector; (

1. c)fraud within the meaning of Article 1 of the Personal situation of the candidate or tenderer. 36 [ S.L.601.07 PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY Convention relating to the Protection of the Financial Interests of the European Communities; (
2. d)terrorist offences or offences linked to terrorist activities,

(2)For the purposes of sub-regulation

(1), the contracting authorities or entities shall, where appropriate, ask candidates or tenderers to supply the documents referred to in sub-regulation

(6)and may, where they have doubts concerning the personal situation of such candidates or tenderers, also apply to the competent authorities to obtain any information they consider necessary on the personal situation of the candidates or tenderers concerned.

(3)Where the information concerns a candidate or tenderer established in a State other than that of the contracting authority or entity, the contracting authority or entity may seek the cooperation of the competent authorities.

(4)If the candidates or tenderers are established in Malta according to nationals laws, the requests mentioned in this regulation shall relate to legal and, or natural persons, including, if appropriate, company directors and any person having powers of representation, decision or control in respect of the candidate or tenderer.

(5)Any economic operator may be excluded from participation in a contract where that economic operator: (

1. a)is bankrupt or is being wound up, or whose affairs are being administered by the court, who has entered into an arrangement with creditors or who has suspended business activities or who is in any analogous situation arising from a similar procedure under national laws and regulations; (
2. b)is the subject of proceedings for a declaration of bankruptcy, for an order for compulsory winding up or administration by the court or for an arrangement with creditors or of any other similar proceedings under national laws or regulations; (
3. c)has been convicted of an offence concerning his professional conduct by a judgement which has the force of res judicata in accordance with national laws or regulations; (
4. d)has been declared guilty of grave professional misconduct proven by any means which the contracting authorities or entities can demonstrate; PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY [ S.L.601.07 37 (
5. e)has been found, on the basis of any means of evidence, including protected data sources, not to possess the reliability necessary to exclude risks to national security; (
6. f)has not fulfilled obligations relating to the payment of social security contributions in accordance with national laws or regulations or the country in which he is established; (
7. g)has not fulfilled obligations relating to the payment of taxes in accordance with national legal provisions or the country in which he is established; (
8. h)is guilty of serious misrepresentation in supplying the information required under these regulations or has not supplied such information.

(6)Where the contracting authority requires proof from the candidate or tenderer that none of the cases quoted in subregulations

(1)or

(2)(a), (b), (c), (

1. f)and (
2. g)applies to him, it shall accept, as sufficient evidence, relevant certification issued by a competent judicial or administrative body in the country of origin or the country whence that person comes showing that these requirements have been met.

(7)Where the certification referred to in sub-regulations

(1)and

(2)(a), (

1. b)and (
2. c)is not available, it may be replaced by a declaration on oath or by a solemn declaration made by the person concerned before a Commissioner for Oaths in Malta or before a judicial or administrative authority, a notary or a competent professional or trade body, in that person’s country of residence. 41.

(1)The contracting authority or entity may request an economic operator to prove his enrolment, as prescribed in his country of establishment, in one of the professional or trade registers or to provide a declaration or certificate as described in Part A of Schedule VI for works contracts, Part B of Schedule VI for supply contracts and Part C of Schedule VI for service contracts. Suitability to pursue the professional activity.

(2)In procedures for the award of service contracts, insofar as candidates have to possess a particular authorisation or be a member of a particular organisation in order to be able to perform the service concerned in their country of origin, the contracting authority or entity may require them to prove that they hold such authorisation or membership.

(3)The provisions of sub-regulations

(1)and

(2)shall be without prejudice to the principles of Community Law on the freedom of establishment and the freedom to provide services. 42.

(1)Proof of the economic operator’s economic and financial standing may, as a general rule, be furnished, inter alia, by one or more of the following: (

1. a)appropriate statements from banks, or where appropriate, evidence of relevant professional indemnity insurance; Economic and financial standing. 38 [ S.L.601.07 PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY (
2. b)the presentation of balance-sheets or extracts therefrom, where publication of the balance sheets is required under company law in the country in which the economic operator is established; (
3. c)a statement of the economic operator’s overall turnover and, where appropriate, its turnover in respect of the products, works or services to which the contract relates for the three previous financial years depending on the date on which the economic operator was set up or the economic operator started trading, as far as the information on these turnovers is available;

(2)An economic operator may, where appropriate and for a particular contract, rely on the capacities of other entities, regardless of the legal nature of the links which it has with them. It must in that case prove to the contracting authority that it will have at its disposal the resources necessary, for example, by producing an undertaking by those entities to that effect.

(3)Under the same conditions, a group of economic operators as referred to in regulation 6 may rely on the capabilities of participants in the group or of other entities.

(4)Contracting authorities or entities shall specify, in the contract notice or in the invitation to tender, which references mentioned in sub-regulation

(1)have been chosen and which must be provided, and of any others it deems fit.

(5)In the event that a candidate or tenderer is, for any valid reason, unable to provide the references requested by a contracting authority or entity, its economic and financial standing may be substantiated by any other document which the contracting authority or entity considers appropriate. Technical and, or professional ability. 43.

(1)Evidence of the economic operators’ technical abilities may be furnished by one or more of the following means according to the nature, quantity or importance, and use of the works, supplies or services: (

1. a)(
2. i)a list of the works carried out over the past five years, accompanied by certificates of satisfactory execution for the most important works. These certificates shall indicate the value, date and site of the works and shall specify whether they were carried out according to the rules of the trade and properly completed. Where appropriate, the competent authority shall submit these certificates to the contracting authority direct; (
3. ii)a list of the principal deliveries effected or the main services provided in the past three years, with the sums, dates and recipients, whether public or private, involved. Evidence of delivery and services provided shall be given: where the recipient was a contracting authority, in the form of certificates issued PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY - [ S.L.601.07 or countersigned by the competent authority; where the recipient was a private purchaser, by the purchaser’s certification or, failing this, simply by a declaration by the economic operator; (
4. b)an indication of the technicians or technical bodies involved, whether or not belonging directly to the economic operator’s undertaking, especially those responsible for quality control and, in the case of public works contracts, those upon whom the contractor can call in order to carry out the work; (
5. c)a description of the technical facilities and measures used by the economic operator to ensure quality and the undertaking’s study and research facilities, as well as internal rules regarding intellectual property; (
6. d)a check carried out by the contracting authorities or entities or on their behalf by a competent official body of the country in which the economic operator is established, subject to that body’s agreement, on the production capacities of the supplier or the technical capacity of the economic operator and, if necessary, on the means of study and research which are available to it and the quality control measures it will operate; (
7. e)in the case of works contracts, service contracts or supply contracts also covering siting and installation operations or services, the educational and professional qualifications of the economic operator and, or those of the undertaking’s managerial staff and, in particular, those of the person or persons responsible for providing the services or managing the work; (
8. f)for public works contracts and public services contracts, and only in appropriate cases, an indication of the environmental management measures that the economic operator will be able to apply when performing the contract; (
9. g)a statement of the average annual manpower of the service provider or contractor and the number of managerial staff for the last three years; (
10. h)a description of the tools, material, technical equipment, staff numbers and know-how and, or sources of supply - with an indication of the geographical location when it is outside the territory of the European Union - which the economic operator has at its disposal to perform the contract, cope with any additional needs required by the contracting authority or entity as a result of a crisis or carry out the maintenance, modernisation or adaptation of the supplies covered by the contract; (
11. i)with regard to the products to be supplied, provision 39 40 [ S.L.601.07 PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY of: (
12. i)samples, descriptions and or photographs, the authenticity of which must be certified if the contracting authority or entity so requests; (
13. ii)certificates drawn up by official quality control institutes or agencies of recognised competence attesting the conformity of products, clearly identified by references to specifications or standards; (
14. j)in the case of contracts involving, entailing and, or containing classified information, evidence of the ability to process, store and transmit such information at the level of protection required by the contracting authority or entity.

(2)In the absence of harmonisation at Community level of national security clearance systems, contracting authorities or entities may provide that this evidence has to comply with the relevant provisions of their respective national laws on security clearance. Contracting authorities or entities shall recognise security clearances which they consider equivalent to those issued in accordance with t heir n ational law, notwithstanding t he possibility to conduct and take into account further investigations of their own, if considered necessary.

(3)The contracting authority or entity may, where appropriate, grant candidates which do not yet hold security clearance additional time to obtain such clearance. In this case, it shall indicate this possibility and the time-limit in the contract notice.

(4)The contracting authority or entity may ask the national security authority of the candidate’s Member State or the security authority designated by that Member State to check the conformity of the premises and facilities that may be used, the industrial and administrative procedures that will be followed, the methods for managing information and, or the situation of staff likely to be employed to carry out the contract.

(5)An economic operator may, where appropriate and for a particular contract, rely on the capacities of other entities, regardless of the legal nature of the links which it has with them. It shall in that case prove to the contracting authority or entity that it will have at its disposal the resources necessary for the execution of the contract, for example by producing an undertaking by those entities to put the necessary resources at the disposal of the economic operator.

(6)Under the same conditions, a group of economic operators as referred to in regulation 6 may rely on the abilities of participants in the group or of other entities.

(7)In procedures for awarding contracts having as their object supplies requiring siting or installation work, the provision of services and, or the execution of works, the ability of economic operators to provide the service or to execute the installation or the work may be evaluated in particular with regard to their skills, PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY [ S.L.601.07 41 efficiency, experience and reliability.

(8)The contracting authority or entity shall specify in the notice which of the references referred to in sub-regulation

(1)it has chosen and which other references must be provided.

(9)In the event for any valid reason, the economic operator is unable to provide the references requested by the contracting authority or entity, it may prove its technical and, or professional ability by any other document which the contracting authority or entity considers appropriate.

1. Should contracting authorities or entities require the production of certificates drawn up by independent accredited bodies attesting the compliance of the economic operator with certain quality management systems standards, such contracting authorities or entities shall refer to quality management systems based on the relevant European standards certified by independent accredited bodies conforming to the European standards concerning accreditation and certification. They shall recognise equ ivalent certificates from independent accredited bodies established in other Member States. They shall also accept other evidence of equivalent quality management systems from economic operators. Quality management systems standards.
2. Should contracting authorities or entities, in the cases referred to in regulation 43

(1)(f), require the production of certificates drawn up by independent bodies attesting the compliance of the economic operator with certain environmental management standards, they shall refer to the Community EcoManagement and Audit Scheme (EMAS) or to environmental management standards based on the relevant European or international standards certified by bodies conforming to Community law or the relevant European or international standards concerning certification. They shall recognise equivalent certificates from bodies established in other Member States. They shall also accept other evidence of equivalent environmental management measures from economic operators Environmental management standards. 46. The contracting authority or entity may invite economic operators to supplement or clarify the certificates and documents submitted pursuant to regulations 40 to 45. Additional documentation and information. 47.

(1)Contracting authorities or entities may introduce either official lists of approved contractors, suppliers or service providers or certification by certification bodies established under public or private law. Official lists of approved economic operators and certification by bodies establsihed under public or private law.

(2)The Director shall adapt conditions for registration on the lists and for the issue of certificates by certification bodies mentioned in sub-regulation

(1)to the provisions of regulation 42

(1),

(4)and

(5), regulation 44

(1)(a) to (i),

(2)and

(4)and, where appropriate regulation 45.

(3)Furthermore the Director shall also adapt the conditions referred to in sub-regulation

(1)to regulations 42

(2)and 43

(2)as regards application for registration submitted by economic operators belonging to a group and claiming resources made 42 [ S.L.601.07 PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY available to them by the other companies in the group. In such a case, these operators must prove to the Director that they will have these resources at their disposal throughout the period of validity of the certificate attesting to their being registered in the official list, and that throughout the same period these companies must continue to fulfil the qualitative selection requirements laid down in the provisions referred to in sub-regulation

(2)on which operators rely for their registration.

(4)Economic operators registered in the official lists of their country may, for each contract, submit to the contracting authority a certificate of registration issued by the competent authority. This certificate shall state the reference which enabled them to be registered in the list or to obtain certification and the classification given in that list.

(5)Certified registration on official lists by the competent authorities or a certificate issued by the certification body shall not, for the purposes of the contracting authorities or entities of other Member States, constitute a presumption of suitability except as regards regulation 40

(1)and

(2)(

1. a)to (
2. d)and (h), regulation 41, regulation 42

(1)(

1. b)and (
2. c)and regulation 43

(1)(a)(

1. i)and (
2. b)to (
3. g)in the case of contractors, regulation 43

(1)(a)(ii), (

1. b)to (
2. e)and (
3. i)in the case of suppliers and regulation 43

(1)(a)(ii), (

1. b)to (
2. e)and (
3. g)in the case of service providers.

(6)Information which can be deduced from registration on official lists or certification may not be questioned without justification. With regard to the payment of social security contributions and taxes, an additional certificate may be required of any registered economic operator whenever a contract is offered.

(7)The contracting authorities shall apply the above provisions only in favour of economic operators established in the Member State holding the official list.

(8)When economic operators from other Member States are being registered in a local official list, no proof or statement can be required other than those requested of national economic operators and, in any event, only those provided for under regulations 40 to 44 and, where appropriate, regulation 45: Provided that economic operators from other Member St a t e s m a y n o t b e o b l i g e d t o u n d e rg o s u c h r e g i s t r a t i o n o r certification in order to participate in a contract. Contracting authorities or entities shall recognise equivalent certificates from bodies established in other Member States. They shall also accept other equivalent means of proof.

(9)Economic operators may apply at any time to be registered on an official list or for a certificate to be issued. They must be informed within a reasonably short period of time of the decision of the authority drawing up the list or of the competent certification body. (10 The certification bodies referred to in sub-regulation

(1)PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY [ S.L.601.07 43 shall be bodies complying with European certification standards.

(11)Contracting authorities or entities that have official lists or certification bodies as referred to in sub-regulation

(1)shall be obliged to inform the Commission and the other Member States of the address of the body to which applications should be sent. Section 3 Award of the contract 48.

(1)The criteria on which the contracting authorities or entities shall base the award of contracts shall be either: Contract award criteria. (

1. a)when the award is made to the most economically advantageous tender from the point of view of the contracting authority or entity, various criteria linked to the subject-matter of the contract in question: for example, quality, price, technical merit, functional characteristics, environmental characteristics, running costs, lifecycle costs, cost-effectiveness, after-sales service and technical assistance, delivery date and delivery period or period of completion, security of supply, interoperability and operational characteristics; or (
2. b)the lowest price only.

(2)The contracting authority or entity shall specify in the contract documentation (contract notices, contract documents, descriptive documents or supporting documents) the relative weighting which it gives to each of the criteria chosen to determine the most economically advantageous tender.

(3)The weightings can be expressed by providing for a range with an appropriate maximum spread.

(4)Where, in the opinion of the contracting authority or entity, weighting is not possible for demonstrable reasons, the contracting authority or entity shall indicate in the contract documentation (contract notices, contract documents, descriptive documents or supporting documents) the criteria in descending order of importance. 49.

(1)The Director may provide that contracting authorities or entities may use electronic auctions.

(2)In restricted and negotiated procedures with publication of a contract notice, the contracting authorities or entities may decide that the award of a contract shall be preceded by an electronic auction when the contract specifications can be established with precision.

(3)In the circumstances mentioned in sub-regulation

(2), an electronic auction may be held on the reopening of competition among the parties to a framework agreement as provided for in regulation 30

(10)(b)(ii).

(4)The electronic auction shall be based: (

1. a)solely on price, where the contract is awarded to the Use of electronic auctions. 44 [ S.L.601.07 PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY lowest price; or (
2. b)on price and, or on the new values of the features of the tenders indicated in the contract documents, where the contract is awarded to the most economically advantageous tender.

(5)Contracting authorities or entities which decide to hold an electronic auction shall state that fact in the contract notice.

(6)The contract documents shall include, inter alia, the following details: (

1. a)the features, the values for which will be the subject of electronic auction, provided that such features are quantifiable and can be expressed in figures or percentages; (
2. b)any limitations on the values which may be submitted, as they result from the specifications relating to the subject of the contract; (
3. c)the information which will be made available to tenderers in the course of the electronic auction and, where appropriate, when it will be made available to them; (
4. d)the relevant information concerning the electronic auction process; (
5. e)the conditions under which tenderers will be able to bid and, in particular, the minimum differences which will, where appropriate, be required when bidding; (
6. f)the relevant information concerning the electronic equipment used and the arrangements and technical specifications for connection.

(7)Before proceeding with an electronic auction, contracting authorities or entities shall make a full initial evaluation of the tenders in accordance with the award criterion or criteria set and with the weighting fixed for them.

(8)All tenderers which have submitted admissible tenders shall be invited simultaneously by electronic means to submit new prices and, or new values; the invitation shall contain all relevant information concerning individual connection to the electronic equipment being used and shall state the date and time of the start of the electronic auction. The electronic auction may take place in a number of successive phases. The electronic auction may not start sooner than two working days after the date on which invitations are sent out.

(9)When the contract is to be awarded on the basis of the most e c o n o m i c a l l y a d v a n t a g e o u s t e n d e r, t h e i n v i t a t i o n s h a l l b e accompanied by the outcome of a full evaluation of the relevant tenderer, carried out in accordance with the weighting provided for in regulation 48

(3).

(10)The invitation mentioned in sub-regulations

(8)and

(9)shall also state the m athematical form ula to be used in the PUBLIC PROCUREMENT OF CONTRACTING AUTHORITIES OR ENTITIES IN THE FIELDS OF DEFENCE AND SECURITY [ S.L.601.07 45 electronic auction to determine automatic re-rankings on the basis of the new prices and, or new values submitted. That formula shall incorporate the weighting of all the criteria fixed to determine the most economically advantageous tender, as indicated in the contract notice or in the specifications; for that purpose, any ranges shall, however, be reduced in advance to a specified value: Provided that where variants are authorised, a separate formula shall be provided for each variant.

(11)Throughout each phase of an electronic auction, the contracting authorities or entities shall instantaneously communicate to all tenderers at least sufficient information to enable them to ascertain their relative rankings at any moment. They may also communicate other information concerning other prices or values submitted, provided that that is stated in the contract documents. They may also at any time announce the number of participants in that phase of the auction. In no case, however, may they disclose the identities of the tenderers during any phase of an electronic auction.

(12)Contracting authorities or entities shall close an electronic auction in one or more of the following manners: (

1. a)in accordance with the date and time fixed in advance, as indicated in the invitation to take part in the auction; (
2. b)when they receive no more new prices or new values which meet the requirements concerning minimum differences. In that event, the contracting authorities or entities shall state in the invitation to take part in the auction the time which they will allow to elapse after receiving the last submission before closing the electronic auction; (
3. c)when the phases in the auction, fixed in the invitation to take p