In the context of the government’s overall policy to promote and assure transparency and efficiency in the public procurement process, the Tenders Review Authority (TRA) was initially established under the Law 101(I)/2003, and commenced operations on 1 April 2004.
It serves a reviewing authority, examining recourses from any party that alleges that it has been aggrieved or treated unfairly by a decision or act of a Contracting Authority, prior to the award of a tender related to services, works or supplies. The TRA is composed of a President and other four members who are appointed by the Council of Ministers on the recommendation of the Ministry of Finance.
Their service lasts for five (5) years. Every decision issued by the TRA is subject to a further recourse before the Supreme Court. Building upon 7 years of experience, the framework governing the operation of the TRA has been recently modernised. In brief, the following new provisions have been implemented: The competence of the TRA has now been redefined, by reference to the nature of the tender and the Contracting Authority.
In particular, public procurement processes run by Contracting Authorities that are part of the government can be reviewed for amounts up to €130.000 (for supplies and services) and up to €500.000 (for works). Public procurement processes run by Contracting Authorities such as Public Organisations and Municipal Authorities can be reviewed for amounts up to €200.000 (for supplies and services) and up to €500.000 (for works).
Any public procurement process with an indicative amount of €750.000 is also subject to review. The recourse before the TRA is lodged not later than (i) fifteen (15) calendar days from the next day of the date when the decision of the Contracting Authority was sent to the interested tenderers or candidates, provided that this delivery was made through fax or other electronic means; or (ii) if other means of delivery are used, fifteen (15) calendar days from the next day of the date when the decision of the Contracting Authority was sent to the interested tenderers or candidates, or 10 (ten) calendar days from the next day of the date when the decision of the Contracting Authority was received.
The periods provided for submission of the recourse cannot be extended under any circumstances. The necessity to file an application for provisional measures prohibiting the execution of a public procurement agreement has now been abolished. When a recourse is filed before the TRA, the TRA always examines within a very efficient timeline whether provisional measures shall be put in place.
The period for filing the recourse as well as the period up to the point when the TRA decides on whether provisional measures shall be put in place, prohibit the execution of a public procurement agreement and, in case this is executed against the rules, the TRA maintains jurisdiction to invalidate the agreement under section 27 of Law 101(I)/2003. New provisions have been implemented in regard to the filing fees.
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