$images[$image]
Search:
Contracts
Notices
Entities
10% Increment on contract price
Orders and Deliberations
Advanced Search 
Advanced Search 
Advanced Search 
Advanced Search 

Accessory Sanctions

The final decisions on the application of the accessory sanctions provided for in Article 460 of the PCC are published on this Portal and remain here for the whole period of disqualification.

To date there are no records on accessory sanctions for publication.

Code of Public Contracts

Key documents on public procurement and electronic public procurement.

  • European Directives
  • Public Contracts Code and complementary legislation
  • European thresholds
  • Information notes 

 

EUROPEAN DIRECTIVES

 Directive 2014/25/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 26 February 2014, on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC.

 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.

 Directive 2014/23/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 26 February 2014, on the award of concession contracts.

 Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors.

Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts.

Directive 2009/81/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of procedures for the award of certain works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defence and security, and amending Directives 2004/17/EC and 2004/18/EC.

COMMISSION Regulation (EC) 213/2008 Comission Regulation (EC) 213/2008 of 28 November 2007 amending Regulation (EC) 2195/2002 of the European Parliament and of the Council on the Common Procurement Vocabulary (CPV) and Directives 2004/17/EC and 2004/18/EC of the European Parliament and of the Council on public procurement procedures, as regards the revision of the CPV.

PUBLIC CONTRACTS CODE AND COMPLEMENTARY LEGISLATION

Public Procurement Law in Portugal 

General 

Public Procurement Law in Portugal is ruled by Decree-Law 18/2008 (the Code of Public Contracts -- CPC), which establishes the rules applicable to public procurement and the substantive regime governing public contracts that take the form of administrative contracts.

Portuguese Public Procurement Regulation derives mostly from the transposition of the European Union’s regulations on public procurement, namely Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors and Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. Decree-Law no. 18/2008, of 29 January, amended by Law no. 59/2008 September 11th, Decree-law no. 278/2009, October 2nd, Law no. 3/2010, April 27th, Decree-law no. 131/2010, December 14th, Law no. 64- B/2011, December 30th and Decree-law no. 149/2012, July 12th, which transposes the said Directives and approves the Public Procurement Code (“PPC”) (“Código dos Contratos Públicos”), is the principal element. Notwithstanding, there are other important diplomas to be considered: - Decree-Law no. 37/2011, of 19 February, that creates the Public Procurement National Agency (“Agência Nacional de Compras Públicas”); - Decree-law no. 197/99, of 8 June, that establishes the legal regime for public expenditure; - Decree-Law no. 104/2011, of 6 October, that establishes the legal regime for public procurement on the fields of defence and security; - Decree-Law no. 111/2012, of May 23, that defines the new rules applicable to the State’s intervention regarding the definition, conception, preparation, launching, awarding, modification, supervision and monitoring of the public-private partnerships; - Decree-Law no. 143-A/2008, of 25 July, that establishes the principles and rules applicable to communications and archive of data and information as foreseen in the PPC. Furthermore, one should consider the Ordinances (“Portarias”) that regulate specific matters of the PPC: - Ordinance no. 701-A/2008, of 29 July, that establishes the models of the notices foreseen in the PPC; - Ordinance no. 701-B/2008, of 29 July, that nominates the PPC accompaniment commission; - Ordinance no. 701-C/2008, of 29 July, that publishes the European Union’s Directives’ thresholds; - Ordinance no. 701- D/2008, of 29 July, that approves the models of “statistic data” to be sent to the Public Procurement National Agency, as foreseen in the PPC; - Ordinance no. 701-E/2008, of 29 July, that approves several models of “data blocks” published in internet site dedicated to the public contracts (“Portal dos Contratos Públicos”), as foreseen in the PPC; - Ordinance no. 701-F/2008, of 29 July, that regulates the constitution, operation and management of the internet site dedicated to the public contracts (“Portal dos Contratos Públicos”); - Ordinance no. 701-G/2008, of 29 July, that defines the rules of electronic procurement platforms; - Ordinance no. 701-H/2008, of 29 July, that approves the obligatory content of the program.

With regard to the scope of this Code, objectively it applies to the formation stage of contracts to be entered into between the contracting entities, whatever any such contracts may be called and whether they are administrative (e.g., public concessions) or private (e.g., IT contracts).

The CPC rules apply not only to the traditional public entities but also to the so-called special- purpose vehicles, in accordance with EC principles.

The e-procurement procedure is mandatory for the public entities as well for contractors, and the market for running the platforms is liberalized. Reference to Public Procurement Law and regulations, certified platforms and pending tenders is accessible through the official Public Contracts site http://www.base.gov.pt.

 

Procedures

The CPC offers the following procedures:

  1. Direct negotiation (procedure through which the public entity chooses the contractor after consulting candidates and negotiating the conditions of the contract with one or more of them).
  2. Negotiated procedure preceded by the publication of a contract notice (the public entity chooses the contractor after publication of a contract notice).
  3. Open tender procedures (any interested economic operator may submit a tender).
  4. Restricted procedure subject to prequalification (any economic operator may request to participate but needs to prove its qualification. After a qualitative selection, only the qualified economic operators are invited by the contracting authority to submit a proposal).
  5. Competitive dialogue (procedure in which any economic operator may request to participate and whereby the contracting authority conducts a dialogue with the candidates admitted to that procedure, with the aim of developing one or more suitable alternatives capable of meeting its requirements, and on the basis of which the candidates chosen are invited to tender).

The CPC establishes rules according to which the choice of these procedures depends on the value of the contract (which is the value of the maximum economic benefit that may be obtained by the awarded tender with the provision of all the services that are the subject of the contract) and special rules on the choice of the procedure depending on the type of contract to be entered into or contracting entity involved. In case of SW contracts (including licensing and in some cases maintenance and support), the exclusivity of IP rights may give rise to direct negotiation despite the amount of the awarded contract.

With regard to the pre-qualification procedure, the CPC adopts two qualification models:

  • A simple one, where the minimum requirements with respect to technical and financial capacity set out in the procedure programme must be met.
  • A complex one, where a pre-established number of candidates qualified according to highest technical and financial capacity are selected, by resorting to a model to evaluate their candidatures.

CPC establishes two tender evaluation methods or contract award criteria:

  1. When the award is made to the tender most economically advantageous from the point of view of the contracting authority (various criteria linked to the subject matter of the public contract in question; for example, quality, price, technical merit, together with the relevant weightings).
  2. The lowest price only.

 

With regard to the rules applicable to the procedure documents, the CPC provides that the schedule of conditions clauses relating to the performance of the contract subject to the competition may establish parameters with which the tenders are required to comply. These parameters -- which may concern price, performance time limit or technical or functional characteristics -- must be defined by minimum or maximum caps and serve to delimit the competition. Tenders that fail to comply with this requirement will be excluded.

In the pursuit of its goal of simplifying pre-contract procedures, the CPC establishes that the negotiated procedure preceded by the publication of a contract notice, open tender procedures, the restricted procedure subject to prequalification, and competitive dialogue take place by electronic systems.

 

Contractual Terms

Part III of the CPC contains the rules common to all contracts taking the form of administrative contracts and regulates the rules applicable to contracts such as: public works contracts, concession of public works and public services, acquisition and leasing of movable property (hereby included HW contracts) and acquisition of services (hereby included SW contracts).

As for administrative contracts in general, the CPC submits these to imperative reasons of public interest, maintains the public contractor's significant powers throughout their performance, creates figures such as benefit sharing and special rules applicable to the public contractor's failure to perform, and introduces rules aimed at the contracting parties sharing risks.

Regarding the substantive regime governing public contracts, we would like to point out the following topics:

  1. Elimination of the dichotomy "turnkey contract, T&M, price list contract or percentage contract", without prejudice to the awarding entity being entitled to design the works on the basis of any of these models.
  2. Increased restrictions of additional works or functionalities (in SW contracts) that will henceforth depend on tighter pre-conditions and no longer include the works required to remedy errors and omissions.
  3. Redefinition of the liability for errors and omissions system.
  4. Increased restrictions on subcontracting, which is a particular constraint in Outsourcing contracts.
  5. Substantial reformulation of the defects liability system (makes applicable consumer law and particularly the two years warranty applicable for IT contracts).
  6. Clarification of the system governing contract cancellation by the owner and by the contractor.
  7. Penalties with a legal ceiling of 20%.
  8. No liability limitation clauses as a rule, in case of termination by default.

IT contracts, either referring to HW, SW, turnkey systems and platforms, and Outsourcing, do not have standard model clauses. Therefore, it is for each public entity to draft the contract terms.

Litigation over IT public contracts is residual, which means that administrative case law is almost non-existent.

More information can be found here 

(no English version available)

Logo Código dos Contratos Públicos

 Legislação

Sources: 

International Public Procurement Guide for In-House Counsel - ITechLaw In-House Counsel Committee’s  -

http://www.itechlaw.org/docs/In-House_Counsel_Public_Procurement_Guide_April_2013_Public_Release_and_Update_FINAL.pdf

Public Procurement, PORTUGAL, Morais Leitão, Galvão Teles, Soares da Silva&Assoc - file:///C:/Users/mgomes/Downloads/GPG_CI_PP_Portugal%20(2).pdf

EUROPEAN THRESHOLDS

COMMISSION REGULATION (EU) 2015/2342, of 15 December 2015, amending Directive 2004/18/EC of the European Parliament and of the Council in respect of the application thresholds for the procedures for the award of public works contracts, public supply contracts and public service contracts: laying down the new thresholds for the award of public contracts as of 1 January 2016.

On 15 December 2015, the European Commission adopted Regulation (EU) No 2015/2342 establishing the new thresholds beyond which the publication in the Official Journal of the European Union (OJEU) of a contract notice for public works contracts, public supply contracts and public service contracts is compulsory.

The new threshold amounts for public contracts relating to works, services or the acquisition or rental of immovable property came into force on 1 January 2016 and are directly applicable to all Member States of the European Union.

Therefore, from 1 January 2016, the use of an open or a restricted procedure without publication of the contract notice in the OJEU only allows the award of contracts whose value exclusive of value-added tax (VAT) is equal to or greater than the following thresholds:

Public supply contracts and public service contracts

Central government authorities listed in Annex IV to Directive 18/2004

(Article7(a) of Dir 18/2004)

(Article 20(1)(b) of CCP)

 


€ 135,000

Public supply contracts and public service contracts

Contracting authorities other than those listed in Annex IV to Directive 18/2004

(Article 7(b) of Dir 18/2004)

(Article 20(1)(b) of CCP)

 


€ 209,000

Public works contracts

(Article 7(c) of Dir 18/2004)

(Article 19(b) of CCP)

 

€ 5,225,000

Contracts subsidised by more than 50 % by contracting authorities

Civil engineering activities; building work for hospitals, facilities intended for sports, recreation and leisure, school and university buildings and buildings used for administrative purposes

(Article 8(a) of Dir 18/2004)

(Article 275(1) of CCP)

 



€ 5,225,000

Contracts which are connected with a works contract within the meaning of Article 8(a) of Directive 18/2004

(Article 8(b) of Dir 18/2004)

(Article 275(2) of CCP))

 

 


€ 209,000

Public works concession contracts

(Article 56(1) of Dir 18/2004)

(Articles 19 and 276 of CCP)

 

€ 5,225,000

(*) CCP (Código dos Contratos Públicos - Public Contracts Code)