The tendering process for public contracts in Malta
All the questions
The bidding process
The PPRs, the Utilities Regulations and the Defense and Security Regulations allow contracting authorities or entities, as the case may be, to publish in advance any planned procurement opportunity by means of a prior information notice (or periodic indicative notice under the Utilities Regulations). The CCRs require the announcement of an opportunity by prior information notice for the activities listed in Annex 6 thereof. Under the Regulations, at the start of a tendering process, a contract notice (or a concession notice in the case of CCRs) must be published as a means of soliciting competition. Once the process has been concluded, the results of the process must be notified to economic operators by means of a contract award notice (or concession award notice, as the case may be) within 30 days. For the award of concessions or contracts in the field of defense and security, the opinion must be notified within 48 days. The PPR and the Utilities Regulations specify that these three types of notices are only mandatory for above-threshold contracts. The CCRs provide for certain exceptions to the obligation to publish a concession notice.
A notice must be drawn up in accordance with standard forms and must contain certain minimum information required by the Regulations. They are first sent to the Publications Office of the European Union and made available on Tenders Electronic Daily. The publication of notices under the PPR and the Utilities Regulations will then take place at national level via e-PPS,8 the government’s e-procurement platform. Prior information notices issued under the Defense and Security Regulation are published by the European Commission, or by the contracting authorities or contracting entities on their “buyer profile”. Concession notices and concession award notices are published at national level in the Official Journal after being sent to the Publications Office of the European Union for publication.
The Maltese Public Procurement Framework sets out different types of procurement procedures which are subject to different requirements and can be used in different circumstances as set out in the 2014 Public Procurement Guidelines. The course and the corresponding deadlines of each procedure are governed by the Rules.
The default position in Maltese law is that the procurement of goods, services and works should be by award of public contract preceded by competitive bidding. However, the appropriate procedure will depend on several factors, such as the estimated value, the subject of the procurement and the market conditions.
Open and restricted procedures are the preferred methods in Malta for awarding public contracts. The open procedure is most often applied in simple contracts, in which all interested economic operators can submit a bid in response to a call for competition. The restricted procedure includes an additional step before the submission and evaluation of tenders during which economic operators are pre-selected and suitable candidates are then invited to submit a tender.
Within the framework of the PPR, the competitive procedure with negotiation and competitive dialogue, the negotiated procedure without prior publication and the innovation partnership require the approval of the director. These procedures may be used in certain circumstances expressly provided for by law and when the market fails to provide the product, service or work required. A contracting authority or contracting entity is free to organize the procedure leading to the choice of a concessionaire within the parameters of the CCRs and in accordance with the general principles of procurement.
Design competitions are another form of procurement procedure and involve a judging panel which may offer prizes or payments to entrants, or may lead to the award of a related service contract. Contracting authorities may decide to organize an electronic auction, the specifications of which can be established with precision, after a complete evaluation of the tenders.
Contracts within the meaning of the Network Regulations and the Defense and Security Regulations may be awarded by the restricted procedure, the negotiated procedure – with or, where applicable, without a prior call for competition – and the competitive dialogue. Under the Utilities Regulations, contracts can also be awarded through the open process or design competitions.
iii Modification of offers
With the exception of procedures requiring a certain degree of discussion or negotiation, or a combination thereof, between an economic operator and the public purchaser (as is the case in a negotiated procedure), once the period expired, no changes may be made to the offer to purchase, except as otherwise provided in the applicable procurement documents. The RG allow bidders to modify, replace or withdraw their bid at any time before the deadline for submission.
Contracting authorities may request economic operators to submit, complete, clarify or correct any incomplete, incorrect or missing information or documentation before selecting the successful tender. The financial offer cannot be modified, except to rectify obvious errors of calculation. These requests must be made in accordance with the procurement documents and the principles of equal treatment and transparency.
During the competitive dialogue procedure, the offers can be specified, clarified and optimized at the request of the contracting authorities. However, this must not involve changes to essential aspects of the procurement documents which may distort competition or have a discriminatory effect.