1. Participating in Public Tenders: Rules and Procedures

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1.1            Types of public procurement procedures

The Public Procurement Regulations S.L. 601.03 list the below Competitive Procedures:

​ ​i. ​Open Procedure (Regulations 115 till 117); ​ii. ​Restricted Procedure (Regulations 118 till 122); ​iii. ​Competitive Procedure with Negotiation (Regulations 123 till 127); ​iv. ​Competitive Dialogue (Regulations 140 till 149); ​v. Innovation Partnership (Regulations 128 till 139); ​vi. ​Design Contest (Regulations 157 till 160);	​

1.1.1         Open Procedure

Any interested Economic Operator may submit an offer in response to a public Call for Competition published using the Open Procedure. The steps in an Open Procedure are as follows:

​a.	​Identify Procurement Needs, Set Technical Specifications, Selection Criteria and Award Criteria
​b.	​Draw Up Tender Documentation & Obtain Necessary Approvals for Publication
​c.	​Advertise as appropriate
​d.	​Allow appropriate time for submission of tenders (manage any pre-contractual remedies sought before the closing date of tender)
​e.	Evaluate Tenders & Award of Contract to Recommended Tenderer/Cancellation
​f.	​Standstill Period (manage any appeals if these arise)
​g.	​Sign the Contract
​h.	​Publish Contract Award Notice (if applicable)
​i.	Implement the Contract

The following Flow-Chart provides a simple outline of the Open Procedure:

 

1.1.2         Restricted Procedure

Any Economic Operator may submit an interest to participate but only those who satisfy the Selection Criteria are invited by the Authority responsible for the Procurement Process to submit a response to a Call for Tenders utilising the Restricted Procedure. Accordingly, the competent Authority only sends the Procurement Documents to the shortlisted candidates.  The steps in a Restricted Procedure are as follows:

Identify Procurement Needs, Set Technical Specifications, Selection Criteria and Award Criteria Request approval of DG Contracts to adopt a restricted procedure. The request should include a clear justification of why such a procedure is necessary Set Selection / Qualifying Criteria and Weighted Award Criteria Draw up Request for Participation and Obtain Necessary Approval for Publication Advertise as appropriate and allow appropriate time for submission of Request for Participation Shortlist candidates (at least 5) who meet the Qualification Criteria (Manage any Pre-Contractual Remedies sought before closing date of Request for Participation) Standstill Period (manage any appeals if these arise) Issue Tender Documents and invite those who qualified to bid and allow appropriate time for Submission of Tenders Evaluate Tenders and Award of Contract to Recommended Tenderer / Cancellation Standstill Period (manage any appeals if these arise) Sign the Contract Publish Contract Award Notice (if applicable) Implement the Contract

The following Flow-Chart provides a simple outline of the Restricted Procedure:

1.1.3         Competitive Procedure with Negotiation

This procedure may be used in any of the following situations:

• Needs cannot be met without adaptation of readily available solutions
• Inclusion of design or innovative solutions
• Contract cannot be awarded without prior negotiations because of specific circumstances related to the nature, the complexity or the legal and financial make-up or because of the risks attached to them
• Technical specifications cannot be established with sufficient precision, with reference to a standard, European Technical Assessment, common technical specification or technical reference

 

The following Flow-Chart provides a simple outline of the Competitive Procedure with Negotiation:

This procedure may be used when fulfilling one or more of the following criteria;

• Needs cannot be met without adaptation of readily available solutions
  
• Inclusion of design or innovative solutions
  
• Contract cannot be awarded without prior negotiations because of specific circumstances related to the nature, the complexity or the legal and financial make-up or because of the risks attached to them
  
• Technical specifications cannot be established with sufficient precision

The following Flow-Chart provides a simple outline of the Competitive Dialogue:

This procedure may be used where there is a need of the Contracting Authority which cannot be met by purchasing supplies, services or works already available on the market. In an innovation partnership procedure, any economic operator may submit a request to participate in response to a Contract Notice by providing the information for qualitative selection. The procedure to be adopted may be similar to the Competitive Dialogue as described above.

1.1.6         Design Contest

This procedure enables a Contracting Authority to acquire, mainly in the fields of town and country planning, architecture and engineering or data processing, a plan or design selected by a jury after being put out to competition with or without the award of prizes.

Special rules apply to the award of a contract through a design contest.  A design contest, in this context, means a procedure in which a contract is to be awarded to the provider submitting the winning design. In summary:

• Design contests are procedures for obtaining plans or designs, which involve a jury. The jury is autonomous in making its decisions, and can offer prizes or payments, which may lead to the award of a services contract.
• The rules apply to contests which are expected to lead to public service contracts, the value of which, including the value of any prizes or payments for the contest, means that they would otherwise be subject to the regulations.

 

1.2        Thresholds that determine different rules (below EU thresholds) 

A basic principle adopted by the Government of Malta is to utilise a competitive process unless there are justifiable exceptional circumstances which must be approved by the appropriate authority/competent authorities. This principle is reflected in the Public Procurement Regulations S.L. 601.03 which prescribe legally binding regulations and procedures for the Awarding of Public Contracts.

With specific regard to below EU Thresholds Procurement, Part III of S.L. 601.03 provides the regulations applicable to Departmental Tenders. The following table depicts the relative thresholds and a very brief description of the respective approaches/procedures that are available for each range.

≤ €5,000	> €5,000 but ≤ €10,000	> €10,000 but < €139,000
Obtaining a minimum of three (3) Quotations.	Publication of the Procurement Call (Open Call for Quotations) on Government’s e-Procurement Platform (ePPS), unless otherwise authorised in writing by the Director General (Contracts).	Publication of the Procurement Call on Government’s e-Procurement Platform (ePPS), unless otherwise authorised in writing by the Director General (Contracts).   NB: Supplies, Works or Services must be procured after a Departmental Call for Tenders.
Publication of the Procurement Call (open Call for Quotations) on Government’s e-Procurement Platform (ePPS).	In exceptional circumstances, through a Direct Contract at the discretion of the Head of the Contracting Authority.	In exceptional circumstances, through a Direct Contract, upon obtaining the prior written approval by the Minister of Finance who has delegated his authority to the Direct Orders Office.
In exceptional circumstances, through a Direct Contract at the discretion of the Head of the Contracting Authority.

 * NB: The above threshold ranges relate to the Estimated Procurement Value (excluding VAT) as calculated by the Contracting Authority.

Further to the above, it is recommended that one reviews Regulations 100 till 104, in order to attain a more detailed explanation of the applicability of the above-mentioned thresholds.

 

1.3            Different rules depending on the procurement type

All types of procurement, being Works, Services or Supplies are regulated by the same rules, regulations and policies. Distinction in relation to regulations may only be attributed to the established Local and EU Thresholds, which are dependent on the Estimated Procurement Value of each specific call.

1.4            Exclusion and Blacklisting Criteria

The Public Procurement Regulation S.L. 601.03, specifically Part VI relates to ‘Exclusion and Blacklisting of Economic Operators’. Accordingly, the following is a brief overview of the Exclusion and Blacklisting grounds. Nonetheless, it is highly recommended that one reviews the full regulations, namely Regulation 191 till Regulation 216, in order to attain a more detail explanation of the applicability of such grounds.

1.4.1         Exclusion Criteria

Mandatory exclusions for offences related to:

• Participation in organised crime;
• Corruption;
• Fraud;
• Terrorism;
• Money laundering;
• Child labour or human trafficking.

 

The term for exclusion for mandatory grounds is 5 years from the date when the judgment has become final.

Exclusion limited to a particular process:

• Is bankrupt or subject to insolvency or winding-up proceedings;
• Is subject to a conflict of interest.

1.4.2         Blacklisting Criteria

Blacklisting by the Director General (Contracts):

• Breach of employment law;
• Economic operator convicted of an offence concerning his professional conduct;
• Significant or persistent’ deficiencies in performance of a contract;
• Economic operator has tried to unduly influence the authority/seek confidential information;
• Economic operator has negligently provided misleading information;
• Serious misrepresentation in supplying the information required.

Blacklisting by the Department of Industrial and Employment Relations (DIER):

• Failure to provide employees with a written contract of service;
• Failure to provide employees with a detailed pay slip containing all relevant details;
• Failure to deposit wages or salaries by direct payment in the employee’s bank account;
• Failure to provide the relevant bank statements of wages and salaries’ deposit and copies of the detailed payslips, which are to be made available as and when required by the Director of Employment and Industrial Relations;
• Has subcontracted a public contract to another person employing the same employees of the principal contractor to carry out the same or similar duties for the execution of the said public contract.

Blacklisting of Economic Operators is put forward before the Commercial Sanctions Tribunal.

An economic operator cannot be awarded a contract, for a period between six months and one year for DIER blacklisting or for a period of two years for Director of Contracts blacklisting as from the date in which the decision becomes final.

1.5            Minimum time-limits for bidders to submit their bid (from the date the Procurement Call was published)

When publishing a Procurement Call, a Contracting Authority is responsible to set appropriate time-limits (i.e. Number of Publication Days for the Call) for the receipt of proposals from Economic Operators. Authorities responsible for the procurement process shall take account of the complexity of the contract and the time required for the drawing up of the procurement proposal, making sure to adhere to pre-established minimum time limits, as set out in the Public Procurement Regulations S.L. 601.03.

It is important to note that certain instances (such as the pre-publishing of a PIN in advance of the publication of the actual CfT or exceptional circumstances that necessitate an Accelerated Procedure) allow for different Minimum Publication Days.

The following table, split per Procurement Procedure, illustrates the Minimum Time Limits that must be respected when publishing a Call for Tenders (CfT):

It is to be noted that the above table is in line with the Minimum Time Limits as set in Regulations 116, 121, 122, 125, 142 and 132 of S.L. 601.03.

1.6            Documents a bidder should include in their Tender Call Submission

The publication of a Tender Call is composed of a Procurement Document, which includes amongst others, Instructions to Tenderers, details of the Technical Specifications/Terms of Reference as well as Terms and Conditions. Accordingly, each specific Procurement Document includes a number of forms and other documentation that should be completed by the bidders. Therefore, when submitting a response to a Tender Call, there is no compulsory document/s that should invariably be included by the bidder. All Economic Operators are obliged to review the Procurement Document and adhere to its contents, especially in relation to what documents are to be submitted.

Having said the above, in general, there is a tendency that a Call for Tenders necessitates at least the submission of the following:

• Eligibility Criteria;
• Exclusion (including Blacklisting) and Selection Criteria: European Single Procurement Document (ESPD) or Self-Declaration and Selection Criteria Information;
• Tenderer’s Technical Offer: Technical Questionnaire Form or Organisation and Methodology Report;
• At times, bidders are also required to submit a Key Experts’ Form as well as other documentation related to the Key Expert/s (namely, CVs and Statement of Availability Form);
• Technical Literature.

In addition, bidders are also required to reply to a set of Declaration Statements directly on Government’s e-Procurement Platform (Electronic Public Procurement System – ePPS).

 

1.7            Where can public call for tenders (including tenders below thresholds be found?

In line with Regulation 102(1) of the Public Procurement Regulations S.L. 601.03, unless authorisation in writing is granted by the Director of Contracts, all competitive Procurement Calls (including Calls for Quotations and Departmental Calls for Tenders) having an Estimated Procurement Value exceeding five thousand Euro (€5,000 excl. VAT) must be published through Government’s e-Procurement Platform (ePPS), hosted on www.etenders.gov.mt.

 

Accordingly, interested Economic Operators may review Procurement Calls on the said portal. The CfT workspace of the system provides the ‘Core Information’ of each specific call. Amongst other salient details, the said page provides the following information:

• Date of Publication of Call
• Procurement Title
• Unique ID Reference of the Call
• Date of ‘End of Clarification Period’
• Date of ‘Submission Deadline of the Call’
• Award Mechanism
• Procurement Type
• Name of Procurement Procedure
• CPV Codes
• Name of the Contracting Authority

 

In addition, the Core Information notifies the reader if the Procurement Call is Below or Above EU Threshold and whether or not the call is split into Lots.

 

It is worth noting that the same portal is to be utilised by interested Economic Operators in order to submit a bid in response to a Procurement Call.

1.8            How electronic invoices should be submitted

The Government of Malta will be accepting electronic invoices that are submitted in the standard electronic format as defined by the European standard for eInvoicing (EN16931).  More specifically the Government of Malta will be adopting the PEPPOL BIS Billing 3.0 as its Core Invoice Usage Specification (CIUS). 

Suppliers to the Government of Malta can submit their eInvoices either by:

• Generating their eInvoices through their ERP system and then send them through their preferred Peppol Certified Access Point, to the Government’s Peppol Certified Access Point, for subsequent onward transmission to the respective contracting authority; or
• They can submit their eInvoices through a Suppliers Invoice Portal that should be made available by the Government of Malta.

 

1.9            Any national sources of help with procurement procedures

The Department of Contracts is the only Central Government Authority, thus, the centre of excellence, reference point and public procurement regulator for the Maltese Islands. In fact, the Director of Contracts is generally responsible for the regulation and administration of the Procurement Procedures as laid down in the Public Procurement Regulations S.L. 601.03.

 

The following are the official contact points of the Department of Contracts:

Email                  info.contracts@gov.mt

Telephone           00356 21220212

 

1.10       Information about procurement planning

The forthcoming information that emanates from Guidance Notes (accessible to Public Officers when logged-in utilising their active ePPS account) published by the Department of Contracts is useful to guide Contracting Authorities and stakeholders on the procurement planning process.

For any procurement procedure, a Contracting Authority shall carry out a needs analysis to identify the procurement requirements, in addition to any required consultation meetings with relevant stakeholders. Thereafter, any necessary applicable market research, including but not limited to discussions with technical experts in the specific field, shall be carried out so as to be in a position to compile non-biased technical specifications, appropriate Selection and Award Criteria as well as a breakdown of all relevant costings. With regard to the latter, it is important that Contracting Authorities conduct comprehensive financial research in order to ascertain that the Estimated Procurement Value is construed on current market prices.

1.10.1     Calculation of the Procurement Estimated Value

When calculating the Procurement Estimated Value, Contracting Authorities shall adhere to the provisions of Regulation 28 of S.L. 601.03. Accordingly, the following definitions may serve as guidance.

Estimated value excluding VAT – is the basic estimate of the procurement; the amount of money the project is predicted to cost. It is an approved budget usually used to estimate, monitor, and control the overall cost performance of the project.

Potential Cost excluding VAT – is the sum of the estimated maximum cost of all possible expenses the Contracting Authority reserves to carry out or is associated with a contract, for additional new works, services or supplies or repeated (extra) procurement of works, services or supplies within the original contract, as well as any contingency, separately identified in the contract.

Total Estimated Value of the Procurement excluding VAT - The calculation of the estimated value of a procurement procedure shall be based on the total amount payable, excluding VAT, as estimated by the Contracting Authority, including any form of option and any renewals of the contracts as explicitly set out in the procurement documents.

1.10.2    Preliminary Market Consultation

As part of Market Research, pursuant to Regulation 47 of S.L. 601.03, Contracting Authorities may conduct Preliminary Market Consultations; for instance, they may seek or accept advice from independent experts or authorities or from market participants. That advice may be used in the planning and conduct of the procurement procedure, provided that such advice does not have the effect of distorting competition and does not result in a violation of the principles of non-discrimination and transparency.

Subject to the requirement to ensure that competition is not precluded nor diminished (and subject always to compliance with the Treaty principles), preliminary research for the purpose of preparing for procurement is permitted and encouraged. Contracting authorities must take care to ensure that the Treaty principles are not breached, both in the way in which the preliminary market consultation process is conducted and in the outcome of the consultations.

In terms of the outcome of the consultations, contracting authorities need to be particularly careful to ensure that the specification prepared does not, for example, favour a particular Economic Operator.

The 2014 Directive (transposed into Maltese Legislations through Subsidiary Legislation 601.03), allows a contracting authority, with no specific limitations on the estimated budgets, to request potential tenderers (market participants), or others (independent experts or authorities), in advance of a tender process to provide to the same Contracting Authority detailed technical and/or financial information relevant on the subject matter of the planned procurement process.

However, contracting authorities that are considering engaging in any pre-procurement consultations must bear in mind:

• the obligation to comply with the basic principles of non-discrimination, equal treatment and transparency that apply under the Directive;
• that the process and outcome must not have the effect of favouring particular providers or precluding competition;
• the public perception of their actions which, if the contracting authority is not very careful, may result in a belief that a particular Economic Operator/s are being favoured;
• that consultation should not be used as a substitute for proper research and preparation by the contracting authority and its advisers;
• that such Preliminary Market Consultation does not result in the award of the procurement.

The Department of Contracts provides for a template of the wording to be used for a Preliminary Market Consultation process. This is further augmented by a number of screenshots of the relevant sections of the ePPS (electronic Public Procurement System) where a Contracting Authority may actually upload a Preliminary Market Consultation, as the ePPS actually caters for such a procedure.

No prior approval by the Department of Contracts is necessary to issue a PMC.

 

1.11       Any sources of information for carrying out procurement procedures, including awarding contracts and their implementation

When carrying out procurement procedures, Contracting Authorities may refer to the various documentation regularly published (and/or reviewed) by the Department of Contracts such as:

• Procurement Policy Notes
• Contracts Circulars
• Guidance Notes
• Standard Operating Procedures
• Manual Notifications
• Fact Sheets
• Procurement e-Templates

The above-mentioned documentation, as applicable, may be retrieved from the two (2) main sources of information on public procurement in the Maltese Islands, namely:

• www.etenders.gov.mt
• www.contracts.gov.mt