The Portuguese Public Contracts Code (CCP) regulates two main issues with regard to public contracts: formation and performance.
Formation covers how public contracts can be awarded (for example, open tendering or negotiated contracts), i.e. it lays down the procedural rules for awarding a public contract. This phase runs from when the decision to contract is taken until the moment when the contract is signed. In Portugal, this is traditionally referred to as public procurement.
Performance involves the obligatory or supplementary rules that apply in substantive terms to public contracts and that shape the contractual and legal relations. These are extremely important aspects of the contract’s performance and include the obligations and powers of the parties, failure to comply or amendment of the contract. The contract performance phase runs from the signature of the contract.
Types of public procurement
National and local authorities must use public contracts when the contract value is above a certain amount. Contracts can involve:
- public works contracts;
- public works concessions;
- public service concessions;
- lease or purchase of movable property; or
- purchase of services.
Open tendering: step-by-step guide
The pre-contractual procedures can be seen in flow charts on the Public Procurement Gateway – On-Line Public Contracts.
This gateway allows access to the information systems that collect, organise and process data on the formation and performance of public contracts for the lease or purchase of movable property and purchase of services, public works contracts or concessions, and public service concessions.
The flow charts offer a general illustration of the main phases in the procedures, without worrying about the specific details that may be involved, which is why the Public Contracts Code must still be consulted.
Types of public contract
The Public Contracts Code (CCP) includes only the following types of procedure: negotiated contract, open tendering, restricted tendering with pre-qualification, negotiated procedure and competitive dialogue.
The negotiated contract is a procedure whereby the awarding authority directly invites one or more entities of its choice to submit a tender, with which it can then negotiate certain aspects of the contract.
- The following thresholds apply to this form of contract:Goods and services: value under EUR 75 000.
- Public works: value under EUR 150 000.
- Other contracts: value under EUR 100 000.
- Substantive criteria: any value.
If the awarding authority is the Banco de Portugal or any of the bodies referred to in Article 2(2) of the CCP, the thresholds are:
- Goods and services: value under EUR 193 000.
- Public works: value under EUR 1 000 000.
If the awarding authority belongs to the traditional public sector (Article 2(1) of the CCP), the thresholds are:
- Plans or projects: value under EUR 25 000.
The CCP provides for a simplified negotiated contract procedure for the lease or purchase of movable property or the purchase of services, where the contractual price does not exceed EUR 5 000. This procedure dispenses with any formalities and the awarding authority simply checks the invoice proving the purchase.
In open tendering, there is no invitation by the awarding authority. Tenderers must submit their qualification documents. Any interested economic operator can submit a tender.
Choosing open tendering or restricted tendering with pre-qualification allows contracts of any value to be awarded, except where the respective tender notices have not been published in the Official Journal of the European Union. In these cases, only contracts with a value less than that indicated in Article 7(c) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 can be awarded.
Open tendering involves only the tender submission phase, although specific rules may be laid down on the necessary technical and financial capacity of tenderers.
Certain requirements must be met in open tendering:
- In the case of contracts for the lease or purchase of movable property or for the purchase of services, the awarding authority can have recourse to an electronic auction, which allows tenderers to progressively improve their tenders.
- In the case of contracts for public works concessions and public service concessions, the awarding authority can include a negotiation phase.
- If the tender notice is published only in Portugal, only contracts with a value less than the EU thresholds (EUR 4 845 000 for public works contracts; EUR 125 000 for purchases of goods and services, in the case of the State; EUR 193 000 for purchases of goods and services, in the case of any other awarding authorities) can be awarded.
- If the tender notice is also published in the Official Journal of the European Union, contracts can be any value.
An ultra-quick procedure can be used, in an emergency, to award a contract for the lease or purchase of movable property or for the purchase of commonly used services, provided that the contract value does not exceed the EU thresholds (EUR 125 000 if the awarding authority is the State and EUR 193 000 in the case of any other awarding authorities).
- The minimum amount of time allowed for submitting tenders in urgent open tendering is 24 hours (based on working days only).
- In this type of procedure, the contract must be awarded to the lowest price.
The Restricted tendering with pre-qualification involves two phases:
- submission of applications and qualification of applicants;
- submission and assessment of tenders and award, with goods suppliers/service-providers having to organise their applications/tenders in line with the methodology and principles that are best suited to the objectives of he tendering procedure.
Restricted tendering with pre-qualification is governed by the provisions regulating open tendering, with the necessary adaptations.
The CCP also allows the negotiated procedure to be used in limited cases permitted by the EU directives. These cases can be seen in Article 29 of the CCP.
Competitive dialogue can be used only for particularly complex contracts, where the awarding authority needs to enter into a dialogue with potential tenderers in order to determine the specifications.
The CCP regards as particularly complex those contracts where it is objectively impossible to define the appropriate technical solution, the technical resources best suited to achieving the solution, and the legal or financial structure inherent in the contract to be awarded.
National public procurement authority
The National Public Procurement Agency (ANCP) is responsible for all these contracts.
The strategic goals defined as part of the reform of public administration and the reduction of expenditure are closely linked to the ANCP’s brief. Through a business-type structure, the latter is attempting to make procurement and management of the government’s vehicle fleet more effective and efficient, by applying a logic involving the inter-administrative sharing of common services.
The National Public Procurement System (SNCP) brings together various decentralised ministerial structures with a common objective: to ensure greater control, transparency and competitiveness in public procurement, and to contribute effectively to the rationalisation of expenditure and the cutting of red tape in public procurement.
The National Public Procurement Agency (ANCP) plans to launch open tenders for the award of framework agreements that will pre-qualify suppliers and lay down the conditions and requirements with which these suppliers must comply in order to supply goods and provide services to the State (prices, deadlines, service levels, service quality, etc.).
In electronic open tenders launched by the ANCP for the award of framework agreements, in accordance with the legal rules, tender documents (tender conditions and specifications) can be obtained from the ANCP website.
It is possible to register for tendering procedures and submit tenders electronically.
After registration, tenderers can use the electronic platform to ask the tender board for any explanations needed to properly understand and interpret the information provided.
Users are authenticated by means of a username and password. Tenders are authenticated by digital signature.
The Public Procurement Gateway is the on-line gateway for public contracts. It includes notices published in the Portuguese Official Gazette and in other places.
Notices for open tendering must be published in the second series of the Portuguese Official Gazette, in a section specifically intended for these notices.
Existing public contracts for goods and services can be viewed on the website of the National Public Procurement Agency (ANCP).
The website of the ANCP also contains a page of Frequently Asked Questions (FAQs) and a good practice manual.