S.L. 601.7 Art. 40Personal situation of the candidate or tenderer.

(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, as defined in Article 2(1) of Joint Action 98/733/JHA;

(b) corruption, as defined in Article 3 of the Council Act of 26 May 1997 drawing up, on the basis of Article K.3 (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;

(c) fraud within the meaning of Article 1 of the Convention relating to the Protection of the Financial Interests of the European Communities;

(d) terrorist offences or offences linked to terrorist activities, as defined in Articles 1 and 3 of Framework Decision 2002/475/JHA respectively, or inciting, aiding or abetting or attempting to commit an offence, as referred to in Article 4 of that Framework Decision;

(e) money laundering and terrorist financing, as defined in Article 1 of Directive 2005/60/EC:

Provided that the Director may authorise a derogation from the application of this sub-regulation for overriding requirements in the general interest.

(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:

(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;

(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;

(c) has been convicted of an offence concerning his professional conduct by a judgement which has the force of in accordance with national laws res judicata or regulations;

(d) has been declared guilty of grave professional misconduct proven by any means which the contracting authorities or entities can demonstrate;

(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;

(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;

(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;

(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 sub-regulations (1) or (2)(a), (b), (c), (f) and (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), (b) and (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.