Tuesday, 17 March 2020

Public Procurement Exceptional Regime: COVID-19

VolverThe Corporate and Commercial Law Department of Belzuz Abogados S.L.P. – Sucursal em Portugal analyses this month, the Public Procurement Exceptional Regime that establishes the exceptional and transitory measures to face the current epidemic situation of the new Coronavirus – COVID 19, now foreseen on Decree-Law n.º 10-A/2020.

The said diploma anticipates several measures and plans to be implemented during the COVID-19 but, on the current article, we will focus our attention on the public procurement procedure and expense authorization.

The regime scope is limited to what is indeed necessary to “prevent, contain, mitigate and treat” the epidemic and to “replace the posterior normality”. Bearing this limitation in mind, it is mandatory to have the proportionality principle in consideration.

The decision to adopt the exceptional regime procedure must be duly justified by the means of the contract, necessarily related with the activities and duties arising from its scope better described on the numbers 2 and 3 of the first article.

To choose the procedure of direct adjustment for public works or movable property lease or purchase related contracts, regardless of the nature of the contracting entity, the provisions of article 24.º/1 c) from the Public Contracts Code (“CCP – Código dos Contratos Púlicos), must be applicable to the extent of the “strictly necessary and for reasons of imperative urgency”.

The hereby described methodology corresponds to the one applicable to the exceptional public procurements regimes of this kind, which means that it is mandatory to have a material basis for the direct adjustment, regardless of the contract’s value, justified by the imperative urgency of its effects.

The legislator reinforces the limitation to the “strictly necessary”, imposing, namely, limitations to the duration of the contracts to be concluded.

The exceptional regime not only nominates the procedure, but also foresees some adaptations and reconfigurations to the direct adjustment chosen, based on a procedural acceleration logic, such as:

- The diploma extends the scope of the simplified direct adjustment to the movable property lease and purchase and the services contracts (excluding the works contracts) with a contractual price up to € 20.000,00 (excluding the applicable VAT);

- To these procedures, the legal limitations regarding the repeated purchases and the invitation to the entities that have supplied goods, services or works free of any charge to the contracting entity are not applicable;

- The exceptional regime procedures are also exempted from the provisions set on the article 27.º-A from the “CCP” that foresees a prior consultation to the direct adjustment;

- All contract awards performed under this new exceptional regime must be communicated to the Government members responsible for the finances area and for the respective sectorial area. These awards must also be publicised on the public procurement web page (Base);

- Without prejudice of the provisions set on the above paragraph, the contracts concluded under the current exceptional direct adjustment regime (written or not), may produce all their effects immediately after the award. Nevertheless, they maintain their obligations to public the contracts on the web page;

- Other important difference lies on the wider possibility to postpone the payment of the contractual price whenever the economic operator assures the availability of the goods and services foreseen on the article 292.º from “CCP”, now exempting the remaining legal assumptions. In these cases, the acts and effects of the contracts are in conditions to be produced.

The application of this rule seems therefore to depend on the argumentation of “the guarantee of availability of goods”, which can happen, if the supplier claims that without the immediate full payment, he will not be able to obtain the good by his own suppliers.

The exceptional regime also includes the elimination or adaptation / limitation of several other formalities. Namely:

- Exemption of the previous authorization for the centralized purchased of goods or services covered by a framework for the entities of the National Public Procurement System (“SNPC - Sistema Nacional de Compras Públicas). The rule is relevant for the so-called contracting entities linked to SNCP. These entities are now exempted from requesting authorization to purchase “outsider” the framework agreement – assumption usually requested by SNCP;

- The contracts awarded under this regime are subject to the provisions of the article 45.º/5 of the Court of Audits Law. In practical terms, this means that, to those contracts with a value higher than € 950.000,00 subject to a prior control covered by the imperative urgency, the effects blocking regime foreseen on the number 4 of the same 45.º article do not apply. In other words, the waiver now provided is not a prior control waiver; the exemption reaches only the blocking effects that result for most contracts exceeding the referred € 950.000,00;

- An exceptional regime for the expenses authorization on the financial and sectorial tutelage is now foreseen with important flexibility mechanisms, including the tacit approval of the said requests after 24 hours without any response (or three days without response, for the pluriannual expenses for certain goods to be developed by a posterior ordinance and deactivation procedures). In this last case there is an assumption of “duly justified cases” which may raise some doubts regarding the application of the tactical approvals regime;

- Al last, the decision to contract the acquisition of services whose purpose is to perform studies, opinions, projects and consultancy services, as well as any specialized works and projects, do not need any administrative authorizations as foreseen in the current legal framework, being its competence reserved to the member of the Government responsible for the sectorial area. This implicates a waiver of the external authorization requirement provisioned on desultory laws.

The Council of Ministers has recommended, by the Resolution number 10-A/2020, issued on March 13th, 2020, that the public entities that have assumed obligations to pay to third parties, as a return of the provision of services and goods, do so shortly.

The Corporate and Commercial Law of Belzuz Abogados, S.L.P. – Sucursal em Portugal has professionals qualified to assist and provide the competent legal advice in the context of public procurement, including the documentation preparations, opening of the said procurement, regulation and legislation, as well as the incorporation of the legal structures to that effect such as consortiums and joint ventures, in order to enable the Clients to participate in public procurement and its projects.

The Belzuz lawyers also have extensive experience in the administrative complains related to the public procurement procedures.

 Telma Moreno Nunes Telma Moreno Nunes

Commercial and Corporate Law department | (Portugal)

 

Belzuz Advogados SLP

This publication contains general information not constitute a professional opinion or legal advice. © Belzuz SLP, all rights are reserved. Exploitation, reproduction, distribution, public communication and transformation all or part of this work, without written permission is prohibited Belzuz, SLP.

Madrid

Belzuz Abogados - Madrid office

Nuñez de Balboa 115 bis 1

  28006 Madrid

+34 91 562 50 76

+34 91 562 45 40

This email address is being protected from spambots. You need JavaScript enabled to view it.

Lisbon

Belzuz Abogados - Lisbon office

Av. Duque d´Ávila, 141 – 1º Dtº

  1050-081 Lisbon

+351 21 324 05 30

+351 21 347 84 52

This email address is being protected from spambots. You need JavaScript enabled to view it.

Oporto

Belzuz Abogados - Oporto office

Rua Julio Dinis 204, Off 314

  4050-318 Oporto

+351 22 938 94 52

+351 22 938 94 54

This email address is being protected from spambots. You need JavaScript enabled to view it.

Associations

  • 1_insuralex
  • 3_chambers_global_2022
  • 4_cle
  • 5_chp
  • 6_aeafa