S.L. 601.9 Art. 112Procedure of the appeal. Ineffectivenessof contract.

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 Special Contracts Committee or by the contracting authority or the contracting entity, shall be made public by affixing it to the notice-board of the contracting authority or the contracting entity or by uploading it on government’s e-procurement platform prior to the award of the contract;

(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 or the contracting entity and any interested party may, within ten calendar days from the day on which the appeal is affixed to the notice-board of the Department of Contracts or of the contracting authority or the contracting entity 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 Public Contracts Review Board and where applicable it shall also be uploaded on the Government’s e-procurement platform;

(d) after the preparatory process is duly completed, the head of the contracting authority or the contracting entity shall within ten days forward to the Chairman of the Public Contracts Review Board all documentation pertaining to the call for tenders in question including files, tenders submitted, copies of deposit receipts and any motivated letter;

(e) the secretary of the board shall inform all the participants of the call for tenders, and the contracting authority or the contracting entity of the date or dates as the case maybe 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 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 board shall keep a record of the grounds of each adjournment and of everything done in each sitting; and

(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.

Ineffectiveness of a Concession Contract a 113. (1) An interested party or a tenderer may file an application before the Public Contracts Review Board to declare that a concession contract with an estimated value which meets or exceeds the threshold established under Schedule 3 is ineffective.

(2) An interested party may only request the Public Contracts Review Board to declare a signed concession contract ineffective if the contracting authority or the contracting entity has awarded a contract without prior publication of a contract notice in the Official Journal of the European Union without this being permissible in accordance with Directive 2014/23/EC.

(3) Any tenderer may also request the Public Contracts Review Board to declare a contract ineffective in the following two instances:

(a) when, notwithstanding an appeal is lodged before the Public Contracts Review Board, a contracting authority or the contracting entity concludes the contract before a final decision is given by the Public Contracts Review Board; or

(b) when the contract is concluded by a contracting authority or the contracting entity before the expiry of the period for the filing of an appeal as provided for in regulation 106.

(4) The provisions of sub-regulation (2) shall not apply where:

(a) the contracting authority or the contracting entity considers that the award of a contract without prior publication of a contract notice in the Official Journal of the European Union is permissible in accordance with Directive 2014/23/EC;

(b) the contracting authority or the contracting entity has published in the Official Journal of the European Union a notice as described in Article 3a of Directive 89/665 expressing its intention to conclude the contract; and

(c) the contract has not been concluded before the expiry of a period of at least ten calendar days with effect from the day following the date of the publication of this notice.