1.1
Types of public procurement procedures
The Public Procurement Regulations S.L. 601.03 list the below
Competitive Procedures:
For a more descriptive explanation, including the applicability of
the said provisions, it is recommended that one reviews the specific
regulations as indicated above.
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:
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:
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:
1.1.4
Competitive Dialogue
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:
1.1.5
Innovation Partnership
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):
Minimum
Time Limit
|
Issued
using ePPS
|
Urgent
/ Accelerated
|
Where
PIN was published
|
Open Procedure
|
35 days
|
30 days*
Allow 2 days for publication on EUOJ =
32days
|
15 days
|
15 days
|
Restricted Procedure
|
Minimum time limit for requests to
participate is 30 days
|
Minimum time limit for requests to
participate is 30 days
|
Minimum time limit for requests to
participate is 15 days
|
Minimum time limit for requests to participate
is 30 days
|
Minimum time limit for tenders is 30 days
|
Minimum time limit for receipt of tenders
is 25 days
|
Minimum time limit for tenders is 10 days
|
Minimum time limit for tenders is 10 days
|
Competitive
Procedure with Negotiation and Innovation Partnerships
|
Minimum time limit for requests to participate is
30 days
|
Minimum time limit for requests to participate is
30 days
|
Minimum time limit for requests to participate is
15 days
|
Minimum time limit for requests to participate is
30 days
|
Minimum time limit for initial tenders is 30 days
|
Minimum time limit for receipt of initial tenders
is 25 days
|
Minimum time limit for tenders is 10 days
|
Minimum time limit for tenders is 10 days
|
Competitive
Dialogue
|
Minimum time limit for requests to participate 30
days
|
No explicit time limits for submission of
initial/subsequent tenders
|
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: