Decree-Law number 131/2010, of 14 December



Ministério das Obras Públicas, Transportes e Comunicações (Ministry for Public Works, Transport and Communications)

Decree-Law


This Decree-Law approves measures on the public procurement regime, which aim to make pre-contractual procedures laid down in the Public Procurement Code (PPC) more simple and transparent.

Thus, in the first place, this Decree-Law simplifies rules that apply to contracts concerning the implementation and operation of the Portuguese National Network for Continuous Integrated Care (RNCCI), as well as cooperation agreements between the State and private institutions for social solidarity, pursuant to article 39 of Decree-Law number 119/83, of 25 February. In both these cases, the contractor is exempted from complying with some of the procurement process formalities, ensuring a more simple procedure and a more rapid provision of social services under consideration, without prejudice to the necessary transparency requirements.

In the second place, this Decree-Law guarantees that all works aimed to implement investment projects in the farming and rural development sector in the scope of the European Agricultural Fund for Rural Development (EAFRD), the contracts of which were awarded before the entry into force of the PPC, benefit from the regime laid down in Decree-Law number 130/2006, the scope of which was limited to only some of them.

Lastly, this Decree-Law fully transposes Directive 2007/66/EChttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=PT&numdoc=307L0066&model=guichett of the European Parliament and of the Council of 11 December, commonly referred to as the «Remedies Directive», which amends Council Directives 89/665/EEChttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=PT&numdoc=389L0665&model=guichett, of 21 December and 92/13/EEChttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=PT&numdoc=392L0013&model=guichett, of 25 February, introducing new rules concerning the award of public contracts intended to made the use of pre-contractual procedures more transparent.

To achieve these objectives, the public procurement regime is amended at the level of rules on contract conclusion and their consequent invalidity.

Thus, at the level of rules on contract conclusion and as a result of obligations imposed to ensure the transposition of the above-mentioned Directive, the mechanism of a notice for voluntary transparency is introduced in the PPC. This mechanism introduces a higher degree of transparency in the public procurement regime, which now ensures that even in situations where the launch of a contract award procedure is not preceded by a notice in the Official Journal of the European Union, the contracting decision must be announced, thus allowing other interested parties to know about the contracting decision before the contract is awarded and to react in time, if they wish to.

At the level of the contract’s consequent invalidity, new rules are introduced in the PPC for situations of non-compliance with the rules imposing the publication of a notice on the launch of a pre-contractual procedure in the Official Journal of the European Union, as well as rules which lay down a minimum standstill period of 10 days between the notice of the decision to award a contract and the conclusion of the contract, already set out in the PPC.

Maintaining the possibility to set aside the ineffectiveness of the contract, as established by general rules of paragraph 4 of article 283 of the PPC, this new regime adds that in these cases the ineffectiveness may only be set aside or limited for the future where the judicial or arbitral decision imposing it also applies alternative penalties, either the shortening of the duration of the contract or the imposition of a fine.

Moreover, information obligations on national bodies towards the European Commission are also clarified.

The Public Procurement Code Monitoring Commission was heard.

Therefore:

Pursuant to paragraph 1a) of article 198 of the Constitution, the Government hereby orders as follows:

Article 1
Subject-matter

1 - This Decree-Law introduces the mechanism of a notice for voluntary transparency and a special regime of consequent invalidity of invalid procedural steps, which apply to contracts covered by part ii of the Public Procurement Code (PPC), approved in annex to Decree-Law number 18/2008, of 29 January, as amended by Law number 59/2008, of 11 September, by Decree-Law number 223/2009, of 11 September, by Decree-Law number 278/2009, of 2 October and by Law number 3/2010, of 27 April, regardless of whether they are considered administrative contracts, amending that statutory instrument and transposing to the national legal order provisions which govern these issues in Directive 2007/66/EChttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=PT&numdoc=307L0066&model=guichett of the European Parliament and of the Council of 11 December, amending Council Directives 89/665/EEChttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=PT&numdoc=389L0665&model=guichett, of 21 December, and 92/13/EEChttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=PT&numdoc=392L0013&model=guichett, of 25 February, with regard to improving the effectiveness of review procedures concerning the award of public contracts.

2 - This Decree-Law also clarifies how PPC rules apply to existing legal relations, or legal relations to be established, in the scope of the implementation and operation of the Portuguese National Network for Continuous Integrated Care and of cooperation agreements provided for in article 39 of Decree-Law number 119/83, of 25 February.

3 - This Decree-Law extends the scope of Decree-Law number 130/2006 to certain contracts awarded in the scope of the European Agricultural Fund for Rural Development (EAFRD).

Article 2
Amendment to the Public Procurement Code

Articles 77, 95, 104 and 472 of the PPC, approved in annex to Decree-Law number 18/2008, of 29 January, as amended by Law number 59/2008, of 11 September, by Decree-Law number 223/2009, of 11 September, by Decree-Law number 278/2009, of 2 October and by Law number 3/2010, of 27 April, are hereby amended to read as follows:

«Article 77
[...]

1 - The decision to award a contract shall be notified simultaneously to all tenderers, stating, where appropriate, the standstill period provided for in paragraph 3 of article 95 or in paragraph 1 a) of article 104, as the case may be.

2 - ...

3 - ...

Article 95
[...]

1 - ...

2 - ...

3 - ...

4 - ...

a) A notice of the procedure has not been published in the Official Journal of the European Union;

b) (Repealed.)

c) ...

d) Only one tender proposal has been presented.

Article 104
[...]

1 - ...

a) in no case less than 10 working days with effect from the date on which the contracting authority’s decision is sent to all tenderers;

b) ...

c) ...

d) ...

2 - ...

a) A notice of the procedure has not been published in the Official Journal of the European Union;

b) (Repealed.)

c) ...

d) Only one tender proposal has been presented.

3 - ...

Article 472
Obligations towards the European Commission

1 - ...

2 - ...

3 - For the purpose of compliance with obligations provided for in paragraph 2 of article 4 of Council Directive 89/665/EEChttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=PT&numdoc=389L0665&model=guichett of 21 December, and paragraph 2 of article 12 of Council Directive 92/13/EEChttp://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=PT&numdoc=392L0013&model=guichett of 25 February, it is incumbent on Instituto da Construção e do Imobiliário, I. P. (Institute for Construction and Real Estate) to notify the European Commission, by 30 September every year, according to data supplied by the Conselho Superior dos Tribunais Administrativos e Fiscais (the High Council for Administrative and Tax Courts), the compilation of all decisions which acquired the authority of a final decision in the preceding year, and which set aside the ineffectiveness of the contract, at terms allowed under paragraphs 3 and 4 of article 283-A, together with the respective reasons.

4 - Decisions referred to in the preceding paragraph, together with the respective reasons, must be made available by electronic means in the public procurement Internet portal, in accordance with an Administrative Rule to be issued jointly by ministers responsible for the justice and public works areas.»

Article 3
Addition to the Public Procurement Code

Articles 78-A and 283-A are hereby added to the PPC, approved in annex to Decree-Law number 18/2008, of 29 January, as amended by Law number 59/2008, of 11 September, by Decree-Law number 223/2009, of 11 September, by Decree-Law number 278/2009, of 2 October and by Law number 3/2010, of 27 April, to read as follows:

«Article 78-A

1 - Where the contract award decision is taken following a contract award procedure without prior publication of a contract notice in the Official Journal of the European Union, the contracting authority may publish a notice for voluntary transparency notice expressing its intention to conclude the contract.

2 - Where the contracting authority intends to express its intention to conclude a contract in the Official Journal of the European Union, according to the preceding paragraph, it shall publish a notice according to the standard form set out in annex iii to Commission Regulation (EC) No 1150/2009http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=PT&numdoc=309R1150&model=guichett of 10 November 2009.

Article 283-A
Ineffectiveness of contracts on the grounds of procedural defects

1 - Contracts are capable of being considered ineffective where they are concluded:

a) following a contract award procedure without the prior publication of a contract notice in the Official Journal of the European Union, where it is required;

b) before the expiry of the standstill period provided for in paragraph 3 of article 95 or in paragraph 1a) of article 104, as the case may be, where appropriate.

2 - The ineffectiveness of a contract on the basis of subparagraph a) of the preceding paragraph shall not apply where, cumulatively:

a) The contract award procedure is chosen on the basis of material criteria provided for in chapter iii of title i of part ii of this Code;

b) The notice for voluntary transparency notice provided for in article 78-A hereof has been published;

c) The contract has not been concluded before the expiry of a period of 10 days from the date of the referred publication.

3 - The ineffectiveness provided for in paragraph 1 may be set aside under paragraph 4 of article 283, in which case the decision shall impose one of the following alternative penalties:

a) the shortening of the duration of the contract; or

b) the imposition of a fine not exceeding the contractual price.

4 - The judicial or arbitral decision referred to in the preceding paragraph shall not set aside the ineffectiveness on account of economic interests directly linked to the contract concerned, where such interests are based, namely, on costs resulting from the delay in the execution of the contract, the launching of a new procurement procedure, the change of the economic operator performing the contract and from legal obligations arising from the ineffectiveness.

5 - Where the contract ineffectiveness’ retroactive effect based of defects provided for in paragraph 1 is deemed to be disproportionate or contrary to good faith, or where a situation of absolute impossibility or overriding reasons relating to a general interest prevent such a retroactive effect, the court is entitled to limit the scope of the ineffectiveness for the future, providing also for one of the alternative penalties set out in paragraph 3.»

Article 4
Exemption from qualification documents and security requirements

Paragraph 7 of article 5 of the PPC shall not apply to existing legal relations, or legal relations to be established, in the scope of the implementation and operation of the Portuguese National Network for Continuous Integrated Care and of Cooperation Agreements provided for in article 39 of Decree-Law number 119/83, of 25 February.

Article 5
Works in the scope of EAFRD

Decree-Law number 130/2006, of 7 July, shall apply to all works contracts awarded before the entry into force of the PPC which aim to implement investment projects in the farming and rural development sector submitted by private bodies or bodies managing uncultivated areas, in the scope of the European Agricultural Fund for Rural Development (EAFRD).

Article 6
Repealing provision

Paragraph 4 b) of article 95 and paragraph 2b) of article 104 of PPC, approved in annex to Decree-Law number 18/2008, of 29 January, as amended by Law number 59/2008, of 11 September, by Decree-Law number 223/2009, of 11 September, by Decree-Law number 278/2009, of 2 October and by Law number 3/2010, of 27 April, are hereby repealed.

Article 7
Entry into force

Articles 2, 3 and 6 herein shall enter into force 30 days after the publication hereof.

Checked and approved in the Council of Ministers of 16 September 2010. – José Sócrates Carvalho Pinto de Sousa - Luís Filipe Marques Amado - Fernando Teixeira dos Santos - Alberto de Sousa Martins - António Manuel Soares Serrano - António Augusto da Ascenção Mendonça - Óscar Manuel de Oliveira Gaspar.

Promulgated on 6 December 2010.

Let it be published.

The President of the Republic, Aníbal Cavaco Silva.

Counter-signed on 7 December 2010.

The Prime Minister, José Sócrates Carvalho Pinto de Sousa.