eFORMS: Contract Conclusion Date - BT 145

Hope all is well.

In Malta, since January 2024 we have started using SDK 1.8 Version of the eForms. As a result, part of the CAN completion, Contracting Authorities are obliged to fill-in BT-145 which relates to the Contract Conclusion Date. Our e-Procurement Team explained that BT-145 is Conditional Mandatory and thus BT-145 is a mandatory field in ‘notice type '29' under following condition type of procedure (BT-105) IS NOT 'Negotiated without prior call for competition'; 'Legal Basis' (BT-01) is NOT 'Regulation (EU, Euratom) 2018/1046'; at least one 'Contract Tender Identifier'(BT-3202-Contract)’.

In addition, as per the eForms Regulation 2019/1780, the description of BT-145, as defined in Table 2 of the Annex, specifies as follows:

Further to the above, this Office is of the understanding that BT-145 needs to include the ‘date when the contract was concluded’ i.e ‘the date when the last contractual party signed the contract’. In Malta, in view of the 30-Day timeframe limitation to publish the CAN (as per Article 50 of EU Directive 2014/24 reproduced below), the actual Contract Agreement is signed by both parties AFTER the publication of the CAN. Accordingly, this Office is not in a position to include the Date of Last Contractual Party on the CAN.

This Office has always interpreted that the commencement of the 30 days within Article 50 is the Date when the Letters to the Recommended Bidder are sent i.e. when the recommendations for award are also published on the ePPS. Thus, the 30-day timeframe includes the 10-Days Appeals period. Is this the correct interpretation please? – Or is the commencement of the 30-days to kick-off from the day following the expiry of the Appeals period? – Or may the commencement of the 30-days start from another date such as the ‘acceptance of the award’ on the Government’s e-procurement platform by the bidder?

Just to put you in the local scenario, IF after the lapse of the appeals period there are no appeals/objections, officers in charge of Contract Compilation are only left with 20 days to follow the below process prior to contract signing:

• Successful Bidder is obliged to accept the contract through Government’s e-procurement platform (usually there is a 2 working days timeframe but this is not necessarily adhered to)

• Successful Bidder is asked to submit Evidence Documentation such as Compliance Certificates

• Verification of the correctness of the said Evidence Documentation (Successful Bidder might be asked to res-submit if incorrect)

• Compilation and Printing of the Contract Agreement incl. all pertinent Annexes

• Awardee is notified to collect the Contract Agreement, sign it and return it to the Department including the submission of other documents such as Bank Guarantees and UBO Declarations (usually there is a 15 days timeframe but this is not necessarily adhered to) • Bidder returns the signed Contract

• Contracting Authority or Authority responsible for the Tendering Process counter-signs the Contract

Therefore, the ‘date when the last contractual party signed the contract’ is only known at this point in time. Up till now, the CAN was being published upon the verification of the Evidence Documentation such as Compliance Certificates.

The description of B-145 also states that ‘if no contract is signed, then the date of contract conclusion may correspond to other dates (e.g. the date when the buyer notified the winning tenderer)’.

Would you kindly explain to which instances the statement ‘if no contract is signed’ refers to please? … Should this be interpreted that the contract has not yet been signed but such shall take place in the coming days? OR Are there instances where a signed contract shall not be taking place at all?

The description of B-145 also states that ‘The date of contract conclusion is always later than the end of the standstill period and the moment when any evidence submitted by the winner has been verified’. Therefore, bearing in mind the above local process, the date of contract conclusion, may never be a date before the verification of Evidence Documentation and other documents (Bank Guarantee & UBO). Is this interpretation correct?

Your assistance in deciphering the below would be appreciated:

i. The commencement of the 30-day commencement of CAN

ii. The correct date to include in BT-145

Thanks