PUBLIC PROCUREMENT LAW IN MALTA – A BRIEF OVERVIEW
Dr. Clement Mifsud-Bonnici
The law specifically identifies the entities which are deemed to be a “contracting authority”, and therefore, which is bound to follow Maltese national public procurement law. This is not necessarily a closed list and there have been judicial attempts to classify public entities or publicly owned companies as a “contracting authority” despite the fact that they are not on this list.
This list further distinguishes between the so-called Schedule 3 entities which are autonomously responsible for the procurement procedures they issue, from beginning to end, and the so-called Schedule 2 entities which have to issue procurement procedures through the Sectorial Procurement Directorate, or the Department of Contracts (Malta’s central government authority), if certain financial value thresholds are met. The Directorate, or the Department, as the case may be, issues and manages the procedure for and on behalf of the contracting authority and even signs the eventual public contract for and on behalf of the same.
Maltese national public procurement law is mostly a transposition of EU Directives on public procurement. The principal piece of legislation that forms Malta’s legal framework for public procurement is the Public Finance Management Act (Chapter 601 of the Laws of Malta) and the key subsidiary legislation is the following:
Public Procurement Regulations of 2016 (Subsidiary Legislation 601.03)
Public Procurement of Entities operating in the Water, Energy, Transport and Postal Services Sectors Regulations of 2016 (Subsidiary Legislation 601.05)
Concession Contracts Regulations of 2016 (Subsidiary Legislation 601.09)
Public Procurement of Contracting Authorities or Entities in the fields of Defence and Security Regulations (Subsidiary Legislation 601.07)
Emergency Procurement Regulations of 2016 (Subsidiary Legislation 601.08)
Procurement of Property Regulations (Subsidiary Legislation 601.12)
The Director of Contracts, Malta’s central government authority and regulator for public procurement, regularly issues and updates circulars and public procurement policy notes which are addressed to contracting authorities on the interpretation and application of the law and on the management of procurement procedure. The same Director publishes, and regularly updates, the General Rules Governing Tendering which contain rules on the management of the procurement procedure. These Rules are usually included in the procurement documents published by contracting authorities and binds both contracting authorities and bidders.
Maltese national public procurement law is generally a faithful transposition of EU Directives where the thresholds are exceeded. There are aspects of national law and practices which are potentially in breach of EU law, but there are instances of gold-plating too. A good example of the latter is the Procurement of Property Regulations which provides that the procurement of real or personal rights over real estate by contracting authorities should be, in principle, pursuant to a competitive tender procedure; this is traditionally outside the scope of the EU Directives.