Public Procurement in Malta – Part 3
This 4-part series aims to explain the lifecycle of public procurement in Malta: from the initial planning of a tender, through publication and bidding, evaluation of offers and contract award, to the execution of the contract and its enforcement and litigious action.
Attacking the Contract Award
When a contracting authority issues its award decision, any bidder or candidate who considers that decision unlawful may seek redress before the Public Contracts Review Board (PCRB).
An objection must be filed within 10 calendar days starting from the day after the authority sends out its award decision, rejection notice, or cancellation. The authority is prevented from signing the contract during this 10-day period, ensuring aggrieved bidders have a fair opportunity to challenge the decision.
Common grounds for such appeals include claims that the evaluation was conducted incorrectly or unfairly, that the winning bid should have been disqualified, or that the appellant’s proposal was wrongly evaluated or overlooked.
Preparing a Written Objection with Reasons and Paying the Security Deposit
The challenge is initiated by filing a formal objection (application) in writing to the PCRB. The application must clearly outline the facts and reasons for the complaint, specifying how the contracting authority allegedly breached the procurement rules, dossier, or correspondence).
Along with the written application, the appellant must lodge a security deposit as specified by law. The deposit is calculated as 0.5% of the estimated contract value, subject to a minimum of €400 and a maximum of €50,000. This deposit must be paid up front for the objection to be valid. The purpose is to deter frivolous or abusive appeals; it creates a financial stake for the complainant. Depending on the outcome, the PCRB may refund this deposit (fully or partially) to the complainant or order it forfeited.
Filing and Notification (Commencing the Proceedings)
The objection (together with proof of deposit payment) is filed with the Secretary of the PCRB within the applicable deadline. Once the complaint is officially lodged, the PCRB will notify the relevant authorities and parties without delay. According to the regulations, the PCRB’s Secretary immediately informs the Director of Contracts and/or the contracting authority that an objection has been filed. Crucially, upon this notification, the award process is automatically suspended. This means the contracting authority cannot finalize the contract or otherwise proceed with the tender award until the PCRB resolves the issue. Additionally, the PCRB publishes notice of the appeal and all participating tenderers in that call are informed (usually via email or the e-tendering system) that an appeal has been lodged. This alerts the winning bidder and any other interested party that the award is being challenged, giving them the opportunity to take part in the proceedings if they wish.
Replies and Compilation of the Tender Record
After an appeal is filed, the contracting authority and other parties may reply in writing within 10 days. At the same time, the authority must send the PCRB the full tender dossier and evaluation records, including bids and committee minutes. This ensures the Board bases its decision on the same evidence used by the authority.
Hearing Before the PCRB
Once preliminary exchanges are concluded, the PCRB schedules an oral hearing and notifies all parties (the appellant, the contracting authority, the winning bidder, and any other interested participants). Hearings are held with urgency given procurement time-sensitivity. Parties may attend with representatives, and in practice are usually assisted by lawyers or technical consultants.
Hearings resemble court sessions, though less formal. The Chairperson leads: the complainant presents first, followed by the contracting authority’s response, with third parties (e.g., the successful tenderer) also allowed submissions. Board members may question any party.
Evidence is primarily documentary: tender files, bids, and evaluation notes, but the Board may summon witnesses and administer oaths if factual disputes arise.
Decision of the PCRB
By law, the PCRB must deliver a written decision no later than six weeks from the date of the final hearing. If more time is required, the Board can postpone the judgment beyond six weeks by a reasoned order notified to all parties. The decision is delivered in a public session and then communicated to the parties.
The PCRB issues a formal written ruling, signed by its members, stating the outcome (“appeal upheld” or “denied”) and reasons. It addresses the main arguments, confirming either a breach of regulation or proper evaluation. The Board has authority to provide various remedies. It can reject the appeal, which means the contracting authority’s decision stands and the procurement process proceeds. Alternatively, it can accede to the appeal, effectively agreeing with the complainant that a violation occurred. In that case, the PCRB will typically order appropriate corrective measures, for example, it may annul the award decision and direct the contracting authority to re-evaluate the bids or to reinstate a wrongly excluded bidder in the evaluation process.
The PCRB’s decision is final and binding unless appealed to the Court of Appeal within the set timeframe, specifically within twenty (20) calendar days from the date on which that decision has been made public.
If unchallenged, the PCRB’s decision constitutes an “executive title”, meaning it is enforceable as if it were a judgment of the civil court. Proceedings in front of the Court of Appeal must be determined within four months from filing an appeal and this as set out in the Public Procurement Regulations (Subsidiary Legislation 601.03). Following the filing of a detailed appeal application and filing of relative replies, the court will hold a sitting for oral pleadings and then defer the case for judgment. The Court relies on the evidence brought forward in front of the Board.
AE Legal can assist you in navigating the procurement process from initial tender drafting to representation.
The above is intended for information purposes only and is not intended to act as legal advice.
