Study-Unit Description

Study-Unit Description


CODE PBL2017

 
TITLE Public Procurement Law and Policy

 
UM LEVEL 02 - Years 2, 3 in Modular Undergraduate Course

 
MQF LEVEL Not Applicable

 
ECTS CREDITS 4

 
DEPARTMENT Public Law

 
DESCRIPTION Public procurement is increasingly becoming an important tool of economic growth, particularly due to its contribution to the GDP of world economies. Public procurement law contains the principles, policies and procedures that guide contracting authorities and entities that buy works, goods or services on the market, with a view to ensure that public funds are spent efficiently, effectively, in a non-discriminatory and competitive manner, through transparent tendering processes.

This study-unit is intended to be an introductory course into the main elements, principles, processes and procedures of the Public Procurement Regulations, including the remedies provided to aggrieved tenderers.Reference will be made to the EU legislation on public procurement and the World Trade Organisation's plurilateral Government Public Procurement Agreement (GPA).

1. Introduction:
- Historical evolution of public procurement in Malta;
- The Principles underlying public procurement;
- Definition of public contracts (public services contracts, public supply contracts, public works contracts).

2. The Financial Administration and Audit Act:
- General Financial Regulations.

3. The role, functions and powers of the Director of Contracts:
- Exclusion and Black Listing of economic operators;
- Non-applicability of regulations.

4. The Public Procurement Process (I):
- Pre-tendering;
- Tendering;
- Selection;
- Award.

5. The public procurement process (II).

6. Types of Procurement Procedures (I):
- Open Procedure;
- Restricted Procedure;
- Competitive Procedure with Negotiation;
- Innovative Partnership;
- Competitive Dialogue;
- Negotiated Procedure;
- Design Contest.

7. Types of Procurement Procedures (II).

8. Boards, Committees and Tribunals established under the Regulations:
- General Contracts Committee;
- Departmental Contracts Committee;
- Ad hoc committees and the Special Contracts Committees;
- Commercial Sanctions Tribunal;
- The Public Contracts Review Board.

9. Public procurement of entities operating in the water, energy, transport and postal services sectors Regulations.

10. Concessions.

11. Remedies (I):
(i) The Public Contracts Review Board:
- Applications before the closing date for competition;
- Appeals from decisions taken after the closing date for the submissions ofn offer;
- Applications in cases of ineffectiveness of a contract.

(ii) Appeals to the Court of Appeal (Superior Jurisdiction).

12. The Remedies Directives (II).

13. The World Trade Organisation’s Public Procurement Agreement.

14. Conclusion and Revision.

Study-Unit Aims:

The aim of this study-unit is for students to recognise the importance of having transparent, non-discriminatory and competitive public procurement rules, that cater for the impartial award of contracts and the judicial protection of economic operators.

In view of the increasing importance of public procurement in world economies, it will enable the student to learn the main elements of the Public Procurement Regulations, including the role of the Director of Contracts, the different stages of the tendering process, the tendering procedures, the Boards, Committees and Tribunals established under the Regulations and the review procedures. Tenderers seek the advice of lawyers to assist them in tendering process, including the compilation of tendering documents and to represent them in judicial proceedings involving public tenders. Thus knowledge of the main elements of the Public Procurement Regulations is important.

In view of Malta's membership in the European Union and the World Trade Organisation, students are also introduced to European law on public procurement and the World Trade Organisation's plurilateral Government Public Procurement Agreement (GPA).

Learning Outcomes:

1. Knowledge & Understanding:

By the end of the study-unit the student will be able to:
- know the applicable rules in the field of public procurement;
- understand what Public Procurement regulations seek to achieve;
- learn the various steps in the tendering process and the review procedures;
- achieve a holistic understanding of the national, EU and international law dimensions of public procurement.

2. Skills:

By the end of the study-unit the student will be able to:
- advise prospective clients on tendering processes and public contracts;
- make representations and institute the relevant actions within the remedies system, on behalf of clients.

Main Text/s and any supplementary readings:

Maltese legislation
- Financial Administration and Audit Act, Laws of Malta, Chapter 174
- General Financial Regulations, Subsidiary Legislation 174.01, 11 April 2017
- Public Procurement Regulations, Subsidiary Legislation 174.04, 28 October 2016
- Public Procurement of Entities operating in the water, energy, transport and postal services sectors Regulations, Subsidiary Legislation 174, 28 October 2016
- Concessions Contracts Regulations, Subsidiary Legislation 174.10, 28 October 2016
- Emergency Procurement Regulations, Subsidiary Legislation 174.09, 28 October 2016
- Public Procurement of contracting authorities or entities in the fields of defence and security regulations, Legal Notice 411 of 2011

EU Directives
- Council Directive 89/665EEC, Council Directive of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts
- Council Directive 2007/66 of 11 December 2007 amending Council Directives 89/665 EEC and 92/137EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts
- Council Directive 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors
- Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (public sector)
- Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (utilities sector)
- Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts

Bibliography:
- Arrowsmith Sue (Ed.), EU Public Procurement Law: An Introduction, EU Asia Inter University Network for Teaching and Research in Public Procurement Regulation, 2010
- Arrowsmith Sue, The Law of Public and Utilities Procurement – Regulation in the EU and UK, Volume 1, Third Edition, Sweet & Maxwell, 2014
- Bovis Christopher H., The Law of EU Public Procurement, Second Edition, Oxford University Press, 2015
- Bovis Christopher H.: EU Public Procurement Law, Elgar European Law, UK, 2012
- De Konick Constant, Ronse Thierry, European Public Procurement Law - The European Public Procurement Directives and 25 years of Jurisprudence by the Court of Justice of the European Communities, Kluwer Law International, 2008
- Government Procurement Agreement, World Trade Organisation, 1996
- Matsushita Mitsuo et al, The World Trade Organisation, Second Edition, Oxford University Press, 2017
- Treumer Steen & Lichere Francois (Eds.), Enforcement of the EU Public Procurement Rules, DJOF Publishing Copenhagen, 2011

 
STUDY-UNIT TYPE Lecture

 
METHOD OF ASSESSMENT
Assessment Component/s Sept. Asst Session Weighting
Examination (1 Hour) Yes 100%

 
LECTURER/S Joseph Bugeja

 

 
The University makes every effort to ensure that the published Courses Plans, Programmes of Study and Study-Unit information are complete and up-to-date at the time of publication. The University reserves the right to make changes in case errors are detected after publication.
The availability of optional units may be subject to timetabling constraints.
Units not attracting a sufficient number of registrations may be withdrawn without notice.
It should be noted that all the information in the description above applies to study-units available during the academic year 2023/4. It may be subject to change in subsequent years.

https://www.um.edu.mt/course/studyunit