3. Reporting irregularities in relation to tender process
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3. Reporting irregularities in relation to tender process

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

In view of the current COVID-19 Pandemic, when filing an Appeal at the Public Contracts Review Board (PCRB), such an official objection shall be lodged electronically and any deposits 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:

​a.

to set aside or ensure the setting aside of decisions including clauses contained in the procurement document and clarification notes taken unlawfully at this stage or which are proven to be impossible to perform; or
​b.
to determine issues relating to the submission of an offer through the governments e-procurement platform; or
​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
​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
​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.

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, the Ministerial Procurement Unit 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, the Ministerial Procurement Unit 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:


​a.
 
 
 
 
any decision by the General Contracts Committee, the Ministerial Procurement Unit or the Special Contracts Committee or by the contracting authority, shall be made public by affixing it to the notice-board of the Department of Contracts, the Ministerial Procurement Unit or of the office of the contracting authority, as the case may be, or by uploading it on government’s e-procurement platform prior to the award of the contract if the call for tenders is administered by the Department of Contracts;
​b.
 
the appeal of the complainant shall also be affixed to the notice-board of the Public Contracts Review Board and shall be communicated by fax or by other electronic means to all participating tenderers;
​c.
 
 
 
 
the contracting authority 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;
​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;
​e.
 
 
the secretary of the Review Board shall inform all the participants of the call for tenders, the Department of Contracts, the Ministerial Procurement Unit and the contracting authority of the date or dates, as the case may be, when the appeal will be heard;
​f.
 
 
 
 
when the oral hearing is concluded, the Public Contracts Review Board, if it does not deliver the decision on the same day, shall reserve decision for the earliest possible date to be fixed for the purpose, but not later than six (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;
​g.
 
the secretary of the Review Board shall keep a record of the grounds of each adjournment and of everything done in each sitting;
​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.
 

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:

​a. Remedies before Closing Date of a Call for Competition - Prospective candidates and tenderers;
​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;
​c.
 
Court of Appeal - Any party who feels aggrieved by a decision taken by the Review Board may appeal to the Court of Appeal.


3.4 What the time constrains/limitations are for submitting a complaint


​a.

Remedies before Closing Date of a Call for Competition – This objection can be filed within the first two-thirds of the time period allocated in the call for competition for the submission of offers;
​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.
​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.

 

Page last updated on: 09/12/2020​

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