I. Introduction

Following the economic situation resulting from the Covid-19 pandemic, there was a need to speed up the tendering of public contracts, and to this end, Law no. 30/2021, of May 21, was approved. This Law came to:

1. Approve special Public Contracting measures;
2. Amend the Public Contracts Code;
3. Amend the Code of Procedure of Administrative Courts; and
4. Amend the legal regime applicable to the constitution, organic structure and functioning of the central purchasing bodies.

Therefore, in addition to the measures provided for in the Public Contracts Code (CCP), approved by Decree-Law no. 18/2008, of January 29, there is currently a set of Special Measures for Public Contracting (MECP) which, due to the novelty they represent, deserve our full attention and this summary presentation.

Although, it should be noted at the outset that the special contracts measures regime is optional. In other words, even if a contract is covered by the special measures approved by Law no. 30/2021, the contracting entity may always choose to adopt a procedure under part II of the CCP.  Whereas, when choosing the procedure it must expressly indicate the rule based on which it has adopted the procedure in question (more specifically, an article of Law no. 30/2021 or an article of the CCP).

However, given the practical issues raised by MECP, the Institute of Public Markets, Real Estate and Construction, I.P., (IMPIC) published Technical Guidance 07-CCP, which, although not binding, acts as a guide to good practice and should be taken into consideration.

        II. Which contracts are covered by the Special Measures for Public Contracting?

Law no. 30/2021 of  May 21 approved a series of special contract formation measures.

Thus, the MECP can be applied to contract formation procedures (it should be noted that the execution regime was not subject to regulation, being applied the general regime) taking into account:

1. The origin of the amount to be allocated to the contract – implementation of projects financed or co-financed by European funds;
2. The implementation of the Economic and Social Stabilisation Programme (PEES) and the Recovery and Resilience Plan (PRR);
3. The promotion of a public policy – (i) housing and decentralisation, (ii) health and social support sector;
4. The object of the contract – (i) information and knowledge technologies; (ii) agri-food goods;
5. The framework for contracting entities in the Integrated Rural Fire Management System – contracts relating to fuel management under this system.

Housing and decentralisation contracts should have as their object:

1. The development of public or low-cost housing or
2. Intervention in properties whose ownership and management has been transferred to the municipalities within the scope of the decentralisation of competences process;

Contracts in the health and social support sector must have as their object the construction, renovation or rehabilitation of properties within the scope of the:

1. Health sector or
2. Continuing and integrated care units or
3. Social support in the areas of the elderly, disability, children and youth.

The type of contract may be the leasing or purchase of movable assets and public works contracts.

Contracts in the field of information and knowledge technologies should have as their object:

1. The acquisition of computer equipment, or
2. The acquisition, renewal, extension or maintenance of software licences or services, or
3. The purchase of cloud computing or storage services, or
4. The acquisition of consultancy or advisory services, or the execution of public works associated with digital transformation processes.

The contracts for the acquisition of agri-food goods must have as their object goods that are:

1. From organic production; or
2. Supplied by holders of the Family Farming Statute, or
3. Provided by holders of “Young Rural Entrepreneur” status.

Contracts within the scope of the Integrated Rural Fire Management System (SGIFR) may only be signed by contracting entities integrated in that system for the signing of contracts (lease or purchase of goods, purchase of services or public works contracts) necessary for fuel management within the scope of the SGIFR.

 

        III. Which are the Special Measures of Public Contracting established by Law no. 30/2021?

The Special Measures Regime introduced specificities to the existing procedures, treating them as if they were new procedures, called “simplified procedures”.

With regard to pre-contractual procedures relating to the implementation of projects financed or co-financed by European funds, the diploma establishes that contracting entities may:

1. Initiate and process simplified public tender or limited tender by prior qualification, when the value of the contract is less than the thresholds referred to in numbers 2, 3 or 4 of article 474 of the CCP, depending on the case;
2. Initiate and process simplified prior consultation procedures, with an invitation to at least five entities, when the value of the contract is simultaneously less than the thresholds referred to in article 474, no. 2, 3 and 4, of the CCP according to the case, and less than EUR 750,000.00 (seven hundred and fifty thousand euros);
3. Initiate simplified direct adjustment procedures under the terms of article 128 of the CCP, when the value of the contract is equal to or less than 15,000.00 (fifteen thousand euros);
4. Reduce the deadline for the submission of proposals and applications in open tenders and tenders limited by prior qualification under the terms of articles 136, no. 3, 174, no. 2 and 191, no. 5 of the CCP, respectively, with the exemption of the justification foreseen in the referred provisions.

The special public contracting measures set out in Article 2 of the Law also apply, although only until 31 December 2022, to:

1. Pre-contract procedures in the area of housing and decentralisation – that is, the signing of contracts aimed at the promotion of public housing or housing with controlled costs or intervention in properties whose ownership and management has been transferred to the municipalities as part of the decentralisation of powers;
2. Pre-contract procedures regarding information and knowledge technologies – i.e. the conclusion of contracts for the purchase of IT equipment, the purchase, renewal, extension or maintenance of software licences or services, the purchase of computing or cloud storage services, the purchase of consultancy or advisory services and the performance of public works associated with digital transformation processes;
3. Pre-contract procedures in the health and social support sector – i.e. the conclusion of contracts for the lease or purchase of movable property, as well as public works contracts for the construction, renovation or rehabilitation of buildings in the health sector, continuous and integrated care units, and social support for the elderly, disability, children and youth;
4. Contractual procedures relating to the implementation of the PEES and the PRR – that is, the signing of contracts intended to promote interventions that, by order of the member of the Government responsible for the sector of activity on which the intervention in question falls, are considered integrated within the scope of the PEES (approved in annex to the Resolution of the Council of Ministers no. 41/2020, of 06 June) or the PRR. It should be noted that the referred order is dismissed when the interventions in question concern the implementation of projects financed or co-financed by European funds.

As regards pre-contractual procedures within the scope of the Integrated Management System for Rural Fires (SGIFR) and related to agri-food goods, the regime provides for other special measures, distinct from those mentioned above.

In effect, under the terms of Article 7, the entities of the SGIFR which are also contracting entities may initiate direct adjustment or prior consultation procedures under the terms of the CCP, with a view to the conclusion of contracts whose object is “the leasing or purchase of goods, the acquisition of services or the performance of works necessary for the management of fuels within the SGIFR“, provided that the value of the contract is simultaneously:

1. Below the thresholds referred to in Article 474(3)(a), (b) or (c) or 474(4)(a) or (b), as the case may be; and
2. Less than EUR 750,000.00 (seven hundred and fifty thousand euros).

It should also be mentioned that, according to Article 7(2), the direct adjustment or prior consultation procedures adopted shall be carried out through the electronic platform used by the contracting entity, without prejudice to the provisions of Article 115(1)(g) of the CCP, when the value of the contract to be signed is lower than those referred to, as the case may be:

1. Article 19, al. c) of the CCP – EUR 150,000.00 (one hundred and fifty thousand euros); or
2. Article 20, no. 1, al. c) of the CCP – € 75,000.00 (seventy-five thousand euros).

Finally, regarding pre-contractual procedures for agri-food goods, Article 8 of the Law establishes that contracting entities can initiate simplified direct adjustment procedures under the terms of Article 128 of the CCP “for the conclusion of contracts whose object is the acquisition of agri-food goods“, when:

1. The value of the contract is equal or inferior to 10.000,00 (ten thousand euros),
2. These agri-food goods are:
   1. From organic farming;
   2. Supplied by holders of the Family Farming Statute, approved by Decree-Law no. 64/2018, of 7 August; or
   3. Provided by holders of the status of “Young Rural Entrepreneur”, approved by Decree-Law No. 9/2019, of 18 January;

        IV. The Simplified Procedures Regime

The “simplified public tender and limited tender by prior qualification and the simplified prior consultation” are governed by the provisions of Articles 10 and following of Law no. 30/2021, and Part II of the CCP is applicable to them in a suppletive way.

These procedures must be carried out through the electronic platform used by the contracting entity, without prejudice to the provisions of Article 115/1, g) of the CCP, the contracting entity being exempt from the duty to state reasons for the decision:

1. Of not contracting in lots, under the terms of article 46-A, no. 2 of the CCP;
2. Of the fixing of the base price, in accordance with article 47, no. 3 of the CCP.

In its turn, these special measures limit the choice of the entities invited by the contracting authority, stipulating that cannot be invited those entities to which the contracting authority has already awarded, during the current economic year and the two previous economic years, following simplified prior consultation, tenders for the conclusion of contracts with an accumulated contract price of:

1. 750,000.00 or more, in the case of public works contracts or public services and public works concessions;
2. Equal to or higher than the thresholds referred to in article 474, no. 3, paragraphs b) or c) or 474, no. 4, paragraph b), of the CCP, as the case may be.

It should be noted that the exclusion of any tender based on the violation of these criteria must be immediately communicated by the contracting entity to the Institute of Public Markets, Real Estate and Construction, I. P. (IMPIC, I. P.) and the Competition Authority (AdC).

In addition, and without prejudice to the provisions above, the provisions of article 113, no. 3 to 6 of the CCP apply to the simplified prior consultation, with the necessary adaptations.

With regard to the matter of impediments, Law no. 30/2021, through article 13, attenuates the impediments foreseen in article 55(1), d) and e) of the CCP. In effect, it is considered that the candidates or competitors whose tax or social security contributions situation is regularized are those that, having debts related to social security contributions or taxes, are in one of the situations foreseen in article 208, no. 2 of the Social Security Contributions Code (CRCSPSS) or in article 177-A, no. 1, paragraphs b) to d) of the CPPT, depending on the case.

Additionally, in accordance with the provisions of Article 13(2), referred to above, the contracting entity “shall also admit the participation of candidates or tenderers whose tax or social security situation is not regularized” provided that the debts related to social security contributions or taxes:

1. Result from a temporary inability to obtain liquidity, proven by a statement from the statutory auditor (ROC) or a certified accountant; and
2. Do not exceed, in aggregate, EUR 25,000.00.

If the tender submitted by the bidder with an unresolved tax or social security situation is awarded, “the contracting entity shall retain the entire amount in debt” and deposit it to the order of the Social Security (SS) or the Tax and Customs Administration (AT), as appropriate, in proportion to the respective credits (cf. Article 13(3) of Law no. 30/2021).

In terms of previous hearing, the Law establishes that, for the effects of the provisions in articles 123, 147 and 185 of the CCP, the deadline for the competitors to pronounce over the preliminary report is:

1. 3 (three) days in the simplified prior consultation;
2. 5 (five) days in the simplified open tender and restricted tender by prior qualification.

Regarding the provision of a guarantee, the requirement to provide it is reduced, particularly in cases where the tenderer demonstrates the impossibility of:

1. Proceeding with the cash deposit due to lack of liquidity, proven by a statement from the statutory auditor (ROC) or certified accountant; and
2. Obtaining insurance for the execution of the contract to be signed or a declaration of assumption of joint liability, under the terms of the provisions in article 88(4) of the CCP from at least two insurance or banking entities.

In these cases, when no guarantee is required, the contracting entity may, if it deems appropriate, withhold up to 10 /prct (ten percent) of the value of the payments to be made, provided that this option is provided for in the specifications.

In the matter of administrative challenges, the time limit of 3 (three) days is uniformly defined for:

1. The submission of administrative challenges to any administrative or other similar decisions concerning the formation of a public contract (article 270 CCP);
2. The pronouncement of the counter-interested parties – candidates or competitors – regarding the request and grounds for the administrative challenge (article 273 of the CCP);
3. The decision of administrative challenges (article 274 of the CCP).

Finally, attention is drawn to the fact that these special public contracting measures, approved by Law no. 30/2021, only apply to public contracting procedures initiated after its date of entry into force, as well as to contracts resulting from such procedures.

 

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