Public Procurement: Can a Tender Be Cancelled Simply Because Its Specifications Need Clarification?

A recent decision of the Public Contracts Review Board (“PCRB”) has provided useful guidance on when a Contracting Authority may cancel a public procurement procedure because of concerns regarding the clarity of its technical specifications.

In Case 2251 – CT2231/2025, decided on 19 June 2026, the PCRB considered a challenge brought by a supplier (the "Objector"), represented by Attard Montalto & Aquilina Advocates, following the cancellation of a tender for the supply of Anti-Haemophilia Factor VIII to the hospital.

The Case

The Objector had submitted the only offer in response to the tender.

After the tender had closed and the offer of the Objector was made public, the evaluation committee raised concerns that two technical specifications were insufficiently clear. The Contracting Authority cancelled the procedure under clause 18.3(b) of the General Rules Governing Tenders, which permits cancellation where the economic or technical parameters of the project have been altered.

The Objector challenged the cancellation before the PCRB, arguing principally that the Contracting Authority had not adequately explained the alleged alteration to the project, that no substantive alteration was being proposed, and that cancellation after the opening of its sole offer was contrary to fundamental principles of public procurement.

The Obligation to give Reasons for Cancellation

The PCRB held the Contracting Authority has an obligation to provide reasons for cancellation, and that such reasons were to be given upon the cancellation of the tender.

Merely referring to clause 18.3(b) and stating that the tender will be re-issued with new specifications, without explaining how the economic or technical parameters had actually changed, was insufficient.

The Grounds upon which a Tender may be Cancelled and the Obligation to Prove the Ground Claimed

The Board affirmed that the grounds of cancellation enumerated in Regulation 15 and clause 18.3 are exceptional in character and must be construed having regard to their purpose.

Given that the Contracting Authority cancelled with reference to clause 18.3(b), it is upon that ground alone that the cancellation falls to be assessed by the Board, and the onus of proving it rests upon the Contracting Authority.

What Constitutes an Alteration of the Economic or Technical Parameters of the Product

The Board held that clause 18.3(b) requires a genuine alteration of the parameters of the project, that is to say, a material change in the subject-matter to be procured, or in the economic or technical envelope within which it is to be procured. This is to be distinguished from a clarification or more precise re-formulation of existing specifications describing one and the same product.

The evidence in the case showed that the Contracting Authority would be seeking to re-issue the tender to acquire the same product. The proposed changes were intended to make the specifications clearer, rather than to change the subject-matter of the procurement.

The Board also considered it relevant that the same specifications had been used successfully in a number of previous procurement procedures for the same product, without preventing their evaluation or award. This indicated that the specifications were sufficiently clear “to enable all interested parties to understand properly the terms and conditions of the process” in terms of Regulation 38(1) of the Public Procurement Regulations.

Equal Treatment and Fair Competition

The PCRB held that cancelling the procedure and subsequently reissuing a substantially identical tender would create a risk to equal treatment and fair competition, since competitors who had not participated in the original procedure would be allowed to participate in the new procedure with the benefit of knowing the Objector's price.

The Board also noted that less intrusive mechanisms, such as clarification notes or corrigenda, were available to address genuine ambiguities before the tender deadline. Cancelling the tender after the opening of the sole offer and in respect of specifications which had occasioned no difficulty in previous tenders, was not a proportionate response.

The decision

The PCRB upheld the objection, revoked the cancellation of the tender and ordered that the procurement procedure continue.

Dr Douglas Aquilina

douglas@amaadvocates.com

"Ħadli l-art il-Gvern": Expropriation in Malta

Chapter 573 of the Laws of Malta provides the legal framework through which the Government, acting through the Lands Authority, may acquire private property either by absolute purchase or by taking possession and use of the property for a period not exceeding ten years, for a public purpose.

In everyday language, this is the legislation most people are referring to when they say "ħadli l-art il-Gvern" ("the Government took my land"). Whether the acquisition is for a road, public infrastructure or another public project, Chapter 573 regulates the circumstances in which the Government may expropriate private property, the compensation payable to affected owners, and the legal remedies available to challenge the acquisition.

The process begins when the Chairperson of the Board of Governors of the Lands Authority issues a Declaration stating that the land is required for a public purpose. This Declaration must be published in the Government Gazette and announced in two local newspapers.

The Declaration must include a clear description of the land being acquired, the public purpose for which the land is required; and the amount of compensation that the Lands Authority is offering to pay. The Declaration must also be accompanied by an architect’s valuation and a site plan identifying the land referred to in the Declaration.

Where the acquisition is for possession and use (“pussess u użu”) rather than outright purchase (“akkwist b’xiri assolut”), the Declaration must also specify the period during which the Authority intends to retain possession of the land, provided this does not exceed ten (10) years. It must also state the total amount of compensation being offered as acquisition rent for the entire period.

Whenever physically possible, the Lands Authority must, within fourteen (14) days of publication of the Declaration in the Government Gazette and at least a one time newspaper announcement, affix a copy of the Declaration and the site plan on or near the property concerned. Within the same period, notice of the Declaration must also be displayed on the notice boards of both the Local Council and the Police Station in the locality where the land is situated.

Can the Expropriation Be Challenged?

Yes, Chapter 573 expressly grants interested parties the right to challenge the expropriation.

For Declarations issued after the coming into effect of Act XVII of 2017, the principal ground of challenge is whether the expropriation genuinely serves a public purpose. Any interested person wishing to contest the public purpose must open a court case in front of the Land Arbitration Board within fifty (50) days from the publication of the Declaration. Through this court case, one would demand the cancellation of the Declaration. If no such court case is filed within the fifty day, the Lands Authority becomes entitled to enter the land and take possession of it.

Where no challenge to the public purpose is made, the Lands Authority must, within fifteen (15) days after the expiry of the 50-day contestation period, deposit the compensation stated in the Declaration into a bank account that guarantees a minimum annual rate of interest. Different running time applies when the Declaration is challenged.

Once this deposit has been made, ownership of the land is automatically transferred to the Government by operation of law. Ownership passes to the Government free and unencumbered by any charges, hypothecs or privileges, without the need for any further legal formalities.

A landowner may also contest the amount of compensation offered in the Declaration. Unlike a challenge to the public purpose, a court case disputing the amount of compensation must be filed within five (5) years from the publication of the Declaration. This application must also be filed before the Land Arbitration Board.

In this court case, the owner must specify the amount of compensation that he or she believes is justly due. If no court case is filed within the five-year period, the owner's entitlement to compensation will generally be limited to the amount offered and deposited by the Lands Authority, together with any accrued interest.

Importantly, a landowner who withdraws the amount offered in the Declaration and deposited, does not forfeit his right to dispute the amount of compensation and claim a higher compensation in proceedings before the Land Arbitration Board. The owner may accept the compensation deposited by the Lands Authority without prejudice to the right to pursue proceedings seeking additional compensation before the Land Arbitration Board.

The time limits imposed by Chapter 573 are strict, and failure to act within the prescribed periods may result in the loss of important legal rights.

For this reason, any landowner who becomes aware of the publication of a Declaration affecting his or her property should seek legal advice without delay to ensure that the appropriate remedies are pursued within the legal timeframes and that the owner's rights are fully protected.

Dr Samira Briffa

samirabriffa@amaadvocates.com

Selling Co-Owned Property under Article 495A

In Malta, it is common for property to be owned jointly by several persons, particularly following an inheritance. This can create practical difficulties — especially where some co-owners wish to sell, but others refuse, delay, or simply cannot be traced.

In such cases, Article 495A of the Civil Code provides a solution.

This provision allows the court to authorise the sale of co-owned property even where not all co-owners agree, provided the legal requirements are satisfied and the dissenting co-owners are not seriously prejudiced.

In simple terms, if the majority of co-owners wish to sell, but the minority refuses or does not appear for one reason or another, the majority may file an application before the First Hall of the Civil Court asking the court to authorise the sale. The majority is assessed by reference to the value of the shares held by each co-owner, not simply by headcount.

If the court is satisfied that the legal requirements have been met, it may authorise the sale in accordance with the wish of the majority.

The main legal requirements for using Article 495A are that:

• The property has been co-owned for more than three years;

• There are no ongoing proceedings for the partition of the property;

• The case is submitted by the majority in value of the shares;

• The sale will not seriously prejudice the minority.

The key safeguard in Article 495A is that the court must be satisfied that the minority owners are not seriously prejudiced by the sale. This assessment is normally limited to assessing whether the sale price is fair. Proceedings under Article 495A therefore tend to require a valuation of the property to justify the proposed sale price. However, apart from the value, the court may consider any other factors that may prejudice the minority, including any prejudicial terms and conditions of the proposed sale.

In practice, the proposed sale is often linked to a promise of sale agreement (konvenju) with a prospective buyer. This promise of sale would be entered into by the majority of co-owners, and would be subject to obtaining court authorisation for the sale of the property as a whole.

Article 495A is particularly useful in Malta because many properties remain tied up in long-standing co-ownership. This remedy allows co-owners to sell their property and terminate the state of co-ownership, in situations where the minority co-owners do not want to sell or where they are unknown or cannot be traced.

Dr Douglas Aquilina

douglas@amaadvocates.com