On 22 March 2019, amendments to the Public Procurement of Entities Operating in the Water, Energy, Transport and Postal Services Regulations (Subsidiary Legislation 174.06 of the Laws of Malta) came into force. These Regulations transpose Directive 2014/25/EU on procurement by entities operating in the water, energy, transport and postal services sector into Maltese law.
The amendments provide that the Director of Contracts, which is the de facto central government authority, may decide not to award a public contract to the recommended bidder where the Director has established that its bid does not comply with the applicable obligations in the fields of environmental, social and labour law established by EU law, national law, collective agreements or by international environmental, social and labour law provisions.
It is envisaged that this assessment will be made within the context of the eventual performance of the public contract. It is most likely that this assessment will be made at the very last stages of the evaluation of bids after the evaluation committee appointed by a contracting authority would have made its own evaluation and would have submitted its evaluation report to the Director.
These amendments attempt to raise the importance of the labour, social and environmental issues in public procurement which is ever-increasing in Maltese public procurement.
The amendments directly affect tenders which fall within the financial thresholds set by the Regulations, that is, €418,000 (excluding VAT) for all public contracts.
Naturally, any dissatisfied bidders are entitled to challenge such a decision by the Director of Contracts before the Public Contracts Review Board within 10 days of receipt of that decision.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.