Introduction

The main pieces of legislation governing public procurement in Malta are the Public Procurement Regulations (Legal Notice 296 of 2010), which very recently replaced the Public Contracts Regulations (Legal Notice 177 of 2005, as amended) with effect from 1st June 2010, and the Public Procurement of Entities operating in the Water, Energy, Transport and Postal Services Sectors Regulations (Legal Notice 178 of 2005, as amended), hereinafter together referred to as the “Regulations”, both issued under the Financial Administration and Audit Act (Chapter 174 of the Laws of Malta). The Regulations prescribe (inter alia) the substantive and procedural rules governing the procurement of works, supplies and services by contracting authorities and entities, the functions and powers of the Director and the Department of Contracts, the Contracts Committees, the Procurement Committees and the Departmental Adjudication Boards, and establish and regulate the Public Contracts Review Board (formerly known as the Public Contracts Appeals Board).

The general principles underlying Malta’s public procurement regime derive from the TFEU and relevant case law developed by the European Court of Justice and the Court of First Instance, including the following: the free movement of goods; the freedom to provide services; the freedom of establishment; equal treatment; nondiscrimination; proportionality; transparency; and mutual recognition.  Of relevance are also long-established tenets of administrative law, such as reasonableness and respect for the “rules of natural justice”.These underlying principles must be observed in the application and interpretation of local procurement legislation, and are relevant even where the contract falls below the Community thresholds and, generally, in matters not caught by the Public Procurement Directives (for example, the award of a public service concession contract).

In Malta there is one major national initiative vis-à-vis Public Procurement that requires particular mention.   As part of the e-Government Services Directory which provides a comprehensive list of the e-services available for citizens and businesses, the Department of Contracts website allows registered users to perform a number of functions. They are able to purchase and download the tender document online; be notified through SMS or email of new calls for tenders that might be of interest to them; post questions online, be alerted with new clarifications or notification and may view them online, may choose to be alerted with developments in the adjudication process.

The Department of Contracts falls within the portfolio of the Ministry of Finance, the Economy and Investment (MFEI). The principal mission of the Department is to have the necessary administrative structures in place so that public procurement is carried out on the principles of fairness, transparency and non-discrimination between economic operators.

Another important initiative is the setting up of a National Green Public Procurement task force and the consequent implementation of an action plan for the Maltese Islands.  On a national scale this policy is breaking new ground and bringing to fruition a shift in the culture of procurement.  Within the local context, the situation in this regard is uncoordinated and fragmented and it is hoped that the planned way forward will address the existing deficiencies and promote a sustainable procurement process.