Public procurement : a comparative perspective

Abstract

Public Procurement is a policy tool regulating public expenditure, thus the coverage of the Maltese Public Service (Procurement) Regulations should be widened beyond central government authorities to include all public entities. This is after all the position existing under EC legislation. The aim of procurement is to regulate the use of public funds, which owing to their nature must be used efficiently and transparently. The most used method for increasing efficiency is competition. Since the requirements set for the procurement may have a great impact on the participation in the competition, regulating the criteria in order to ensure reasonableness is essential. The perception of these criteria has been in general unreasonably economical - public funds must be used according to the political priorities of society. This thesis therefore examines the situations where such policies could be allowed and suggests a distinction between the selection and award stages of the procurement process -with political criteria being allowed in the former but not in the latter stage. Competition proceedings are essential to ensure the proper administration of funds but a strict requirement to use these procedures in all occasions would be harmful in those exceptional situations where such procedures actually reduce efficiency. Maltese legislation rather than providing for such situations gives extreme flexibility to the authorities and although such a degree of flexibility necessitates proper structures to prevent mal-administration unfortunately such a system is rare in the Maltese regulations - with an effective review system existing only for larger contracts, that enjoy the involvement of the Director of Contracts to ensure fairness. This thesis thus proposes that the major amendment to be made to the Regulations is the extension of the Public Contracts Appeals Board to be able to review all public contracts.