Proposed EU Public Procurement Act: A New Era for Government Purchasing

On 9 September 2026, the European Commission proposed a Public Procurement Act. Despite the name, it is a Regulation. It would repeal the three 2014 Directives on public contracts, utilities and concessions and replace them with a single set of rules.

Unlike a Directive, which each Member State must write into its own law, a Regulation needs no transposition. Once it applies, the same rules would bind contracting authorities and bidders directly across the 27 Member States in the EU.

In Malta, the Public Procurement Regulations, the Utilities Regulations and the Concession Contracts Regulations would, for the most part, be made redundant. Maltese legislation would still be needed in four areas:

Below-threshold contracts. These remain for Malta to regulate, subject to Treaty principles where there is cross-border interest.
Member State choices. National law must give effect to steps the Regulation requires, such as designating a coordinating authority.
Institutions. The rules establishing Malta’s national coordinating authority, its National Public Procurement Data Space (NPPDS) authority and any national authority designated to assess self-cleaning evidence, together with their composition, committees and functions.
Remedies. The proposal leaves the EU remedies rules untouched, so challenges before Malta’s Public Contracts Review Board and Court of Appeal would remain a matter for national law.

The Commission says reform is needed because the current rules are complex and inflexible, price-only awards remain common, strategic criteria are underused, rules on non-EU access are unclear and fragmented eProcurement systems weaken oversight. Its stated aims are simpler, more flexible rules, more strategic procurement and a common digital system.

The key proposed changes are set out below.

No.		Current rules	Under the proposed Public Procurement Act
1.	Procedures	Open, restricted, competitive procedure with negotiation, competitive dialogue, innovation partnership, negotiated procedure without prior publication, framework agreements, dynamic purchasing systems, electronic auctions, electronic catalogues and design contests.	Two main procedures. An open procedure, and a dynamic procedure where suppliers join a standing pool and compete for individual contracts. Either may run with or without selection criteria, and with or without negotiation. A separate innovation procedure covers solutions not yet developed.
2.	Award criteria	Award on the most economically advantageous tender, which may be identified on price or cost alone. Member States may bar price-only awards, but need not.	Best price-quality ratio is the rule. Quality must carry at least 30% of the marks, and 50% for labour-intensive contracts. A buyer may go lower only where quality is secured through the specifications or the performance conditions, and must say so.
3.	Negotiation	Allowed only in the competitive procedure with negotiation and the competitive dialogue, both on defined grounds, in the innovation partnership, and in the negotiated procedure without prior publication. No negotiation is permitted in the open or restricted procedures.	Contracting authorities are allowed to negotiate in all cases. The scope of the negotiations is limited to the “non-essential characteristics” of the solution to be purchased. This includes elements relating to technical merit, quantity, delivery conditions and other commercial aspects, but does not include exclusion grounds, selection criteria and award criteria. The contracting authorities must make it clear at the outset of the procedure what characteristics are not subject to negotiation.
4.	Direct awards	The negotiated procedure without prior publication, available only on exhaustive grounds.	The negotiated procedure without prior publication (direct award) survives, and additional grounds are introduced, while other grounds are dropped. The procedure is now called “contracts requiring only publication of public summary of result”. Interestingly, contracting authorities may now resort to this procedure even where the opening up of the contract to competition could negatively affect essential national security interests of the Union or the Member State of the public buyer and there is no possibility of applying less intrusive measures. The possibility to resort to this procedure in the case of extreme urgency and where competition is absent for technical reasons has been retained.
5.	Digital infrastructure	eProcurement means are mandatory, but each Member State builds its own. Notices go to the Official Journal at set points. Nothing at all is required below the thresholds, and nothing structured is published once the contract is running.	A single interlocking system: a shared EU network, common technical standards, an eligibility service using digital business credentials such as the European Business Wallet, and national and EU data spaces. Contracts from EUR 10,000, even below the thresholds, are filed within 20 days of signature and of completion and kept at least ten years.
6.	European preference	No general provision, although utilities may already reject supply tenders where over half the products come from countries without a procurement agreement with the EU. Otherwise, access is left to the international agreements and to the separate International Procurement Instrument.	A buyer may confine a tender to EU and covered suppliers (from countries with a procurement agreement with the EU), require a minimum share of EU or covered content, award preference points or a price reduction, or reject a tender where that content is under 50% of its value. Optional for now, but the Commission may make it compulsory against non-covered suppliers and products, with limited opt-outs.
7.	Modifications	A free hand only where the modification is below both the thresholds and 10% of value for supplies and services, or 15% for works, or falls within a clear review clause or another defined route. A hard ceiling of 50% for extra works and for unforeseen events.	A flat 15% allowance, cumulative, with no threshold test, provided the economic balance is unchanged. The 50% ceiling disappears and if the modification exceeds the 50%, reasons must be published before making the modification.
8.	Exclusion and Self-cleaning	An economic operator caught by any mandatory or discretionary exclusion ground, serious crime included, may show it has since put its house in order and stay in the running.	Only available against the discretionary exclusive grounds. A final conviction for one of the listed offences cannot be cured, whatever remedial steps the supplier has taken. Member States may designate a national authority competent to evaluate the evidence of self-cleaning. Contracting authorities shall rely on a positive decision of such national competent authority.
9.	Subcontracting the whole job	No bar on subcontracting the whole contract, although buyers may reserve critical tasks to the main contractor.	A contract may not be subcontracted in its entirety, nor further subcontracted in its entirety.
10.	Intellectual property	Not specifically regulated. The specifications may state whether a transfer of IP is required, and nothing more is said about who owns what.	A general regime. The supplier keeps what it already owned, unless the buyer requires a transfer where necessary, notably for critical infrastructure. The supplier must license the buyer, non-exclusively and as far as needed, to use, adapt and maintain what it has bought. Where relevant, the buyer must state in advance who will own whatever is created; in the innovation procedure, the supplier keeps it by default.

The proposal now passes to the European Parliament and the Council, which may amend it. Once adopted, the Regulation would apply two years after entering into force. Until then, the three 2014 Directives, and the Maltese Regulations implementing them, continue to govern procurement.

For more information, contact Clement Mifsud-Bonnici and Calvin Calleja.