3.1 Rules on placing complaints / reviewing public procurement procedures
The right of redress is present at
various stages of a procurement procedure. Remedies and Appeals may occur in
the following instances:
- Remedies before Closing Date of a Call for
Competition
-
Appeals from decisions taken after the closing
date for the submissions of an offer
-
Court of Appeals
When filing an Appeal at the Public Contracts Review Board (PCRB), such an official objection may either be lodged electronically or in person at PCRB’s Offices in Floriana. In case of the former, deposits shall be paid through bank transfer.
3.1.1
Remedies before Closing Date of a Call for Competition
In line
with Regulation 262 of S.L. 601.03, prospective candidates and tenderers may,
within the first two-thirds of the time period allocated in the call for
competition for the submission of offers, file a reasoned application before
the Public Contracts Review Board:
b.
|
to determine issues relating to the submission
of an offer through the government’s e-procurement
platform;
or |
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c.
|
to remove discriminatory technical, economic
or financial specifications which are present in the call
for
competition, in the contract documents, in clarifications
notes or in any other document relating to the contract
award procedure; or |
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d.
|
to correct errors or to remove ambiguities of
a particular term or clause included in a call for competition, in
the contract documents, in clarifications
notes or in any other document relating to the contract award procedure; or |
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e.
|
to cancel the call for competition on the
basis that the call for competition is in violation of any
law or is likely to violate a particular law if it is
continued. |
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The
application shall only be valid if accompanied by a deposit equivalent to zero
point five per cent (0.50%) of the estimated value set by the contracting
authority of the whole tender or if the tender is divided into lots according
to the estimated value of the tender set by the contracting authority for each
lot submitted by the tenderer, provided that in no case shall the deposit be
more than fifty thousand euro (€50,000) which may be
refunded as the Public Contracts Review Board may decide in its decision.
For
further information in relation to ‘Remedies before Closing Date of a Call for
Competition’ one may review Regulations 262 till 268 of S.L. 601.03.
3.1.2
Appeals from Decisions taken after the Closing
Date of the Submission of an Offer
In line
with Regulations 270 till 276 of S.L. 601.03, where the estimated value of the
public contract meets or exceeds five thousand euro (€5,000) any tenderer or
candidate concerned, or any person, having or having had an interest or who has
been harmed or risks being harmed by an alleged infringement or by any decision
taken including a proposed award in obtaining a contract, a rejection of a
tender or a cancellation of a call for tender after the lapse of the
publication period, may file an appeal by means of an objection before the
Public Contracts Review Board, which shall contain in a very clear manner the
reasons for their complaints.
The
objection shall be filed within ten (10) calendar days following the date on
which the contracting authority or the authority responsible for the tendering
process has by fax or other electronic means sent its proposed award decision
or the rejection of a tender or the cancellation of the call for tenders after
the lapse of the publication period.
The
communication to each tenderer or candidate concerned of the proposed award or
of the cancellation of the call for tenders shall be accompanied by a summary
of the relevant reasons relating to the rejection of the tender as set out in
Regulation 242 or the reasons why the call for tenders is being cancelled after
the lapse of the publication period, and by a precise statement of the exact
standstill period.
The
objection shall only be valid if accompanied by a deposit equivalent to 0.50
per cent of the estimated value set by the contracting authority of the whole
tender or if the tender is divided into lots according to the estimated value
of the tender set by the contracting authority for each lot submitted by the
tenderer, provided that in no case shall the deposit be less than four hundred
euro (€400) or more than fifty thousand euro (€50,000) which may be refunded as
the Public Contracts Review Board may decide in its decision.
The
Secretary of the Public Contracts Review Board shall immediately notify the
Director, Sectoral Procurement Directorate and, or the contracting authority,
as the case may be, that an objection had been filed with his authority thereby
immediately suspending the award procedure.
The
Department of Contracts, Sectoral Procurement Directorate or the contracting
authority involved, as the case may be, shall be precluded from concluding the
contract during the period of ten (10) calendar days allowed for the submission
of appeals. The award process shall be completely suspended if an appeal is
eventually submitted.
The
procedure to be followed in submitting and determining appeals as well as the
conditions under which such appeals may be filed shall be the following:
b.
|
the appeal of the complainant
shall also be affixed to the notice-board of the Public Contracts Review Board
and shall be communicated by fax or by other electronic means to all
participating tenderers; |
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c.
|
the contracting authority and
any interested party may, within ten (10) calendar days from the day on which
the appeal is affixed to the notice board of the Review Board and uploaded
where applicable on the government’s e-procurement platform, file a written
reply to the appeal. These replies shall also be affixed to the notice board of
the Review Board and where applicable they shall also be uploaded on the
government’s eProcurement platform; |
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d.
|
the authority responsible for
the tendering process shall within ten (10) days forward to the chairman of the
Public Contracts Review Board all documentation pertaining to the call for
tenders in question including files and tenders submitted; |
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e.
|
the secretary of the Review
Board shall inform all the participants of the call for tenders, the Department
of Contracts, Sectoral Procurement Directorate and the contracting authority of
the date or dates, as the case may be, when the appeal will be heard; |
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f.
|
when the oral hearing is
concluded, the Public Contracts Review Board, if it does not deliver the
decision on the same day, shall reserve decision for the earliest possible date
to be fixed for the purpose, but not later than six (6) weeks from the day of
the oral hearing:
Provided that for serious and justified
reasons expressed in writing by means of an order notified to all the parties,
the Public Contracts Review Board may postpone the judgment for a later period; |
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g.
|
the secretary of the Review
Board shall keep a record of the grounds of each adjournment and of everything
done in each sitting; |
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h.
|
after evaluating all the
evidence and after considering all submissions put forward by the parties, the
Public Contracts Review Board shall decide whether to accede or reject the
appeal or even cancel the call if it appears to it that this is best in the
circumstances of the case. |
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3.1.3
Court of Appeal
Pursuant to
Regulations 284 till 286, any party who
feels aggrieved by a decision taken by the Review Board may appeal to the Court
of appeal as constituted in accordance with article 41(1) of the Code of
Organization and Civil Procedure by means of an application filed in the
registry of that court within twenty calendar days from the date on which that
decision has been made public.
The appeal
application shall be addressed against the authority responsible for the
tendering process, the contracting authority, the recommended tenderer, if any,
and any other party involved in the proceedings before the Public Contracts
Review Board, who may file a written reply within twenty days from the date of
service:
Provided that if
the appellant fails to try to serve the appeal application on all the parties
above-mentioned within two weeks of the filing of the appeal, the Court, after
hearing during the first sitting of the appeal the reasons why service was not
effected, may declare by means of a decree delivered in open court that the
appeal is deserted with expenses to be borne by the appellant.
The Court of
Appeal shall set down the cause for hearing at an early date, in no case later
than two months from the date on which the appeal is brought before it and shall
cause notice of such date to be given to the parties to the suit who, on their
part, shall assume the responsibility to visit the court registry and be aware
of the latest information regarding the appointment for the hearing of the
case.
After appointing
the application for hearing, and after listening to the oral submissions made
by all parties, the Court shall decide the application on its merits, within
the shortest time possible but not any later than four months from the day when
the appeal had been filed and the parties have been duly notified. Pending the
decision of the Court the process of the call for tenders shall be suspended.
For
further information in relation to ‘Court of Appeal’ one may review Regulations 284 till 290 of S.L. 601.03.
3.2 How and to whom an irregularity in the tendering
process can be reported
Apart from the Public Contracts
Review Board (PCRB) which role is specific to the circumstances relayed in the
preceding questions, any other potential or alleged irregularities are to be
reported to the Department of Contracts through traditional or electronic
communication where the latter can be submitted to
compliance.contracts@gov.mt.
3.3 Who can submit a complaint?
Anyone can submit a complaint on any
of the different aspects and ramifications of the public procurement scenario.
Specific complaints on particular calls for competition can be submitted as per
below:
b.
|
Appeals from decisions taken
after the closing date for the submissions of an offer - any tenderer or candidate concerned, or any person, having or having
had an interest or who has been harmed or risks being harmed by an alleged
infringement or by any decision taken including a proposed award in obtaining a
contract, a rejection of a tender or a cancellation of a call for tender after
the lapse of the publication period, may file an appeal by means of an
objection before the Public Contracts Review Board; |
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c.
|
Court of Appeal - Any party who feels aggrieved by a decision taken by the Review
Board may appeal to the Court of Appeal. |
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3.4 What the time constrains / limitations are for
submitting a complaint
b.
|
Appeals from decisions taken
after the closing date for the submissions of an offer – This objection shall be filed within ten calendar days following the
date on which the contracting authority or the authority responsible for the
tendering process has sent its proposed award decision or the rejection of a
tender or the cancellation of the call for tenders after the lapse of the
publication period. |
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c.
|
Court of Appeal – This objection can be submitted within twenty calendar days from the
date on which the PCRB decision has been made public. |
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