Presidência do Conselho de Ministros (Presidency of the Council of Ministers)
Resolution
(This is not an official translation of the law)
It is incumbent upon the State to ensure that all users have access to the universal service of electronic communications, being a minimum set of provisions as defined by the law and of specified quality, which are to be provided in a non-discriminatory manner and independently of the geographical location of users.
This service comprises connection to a public communications network at a fixed location and provision of a publicly available telephone service over that connection, adequate provision of public pay-telephones and, additionally, provision of a comprehensive telephone directory and of a comprehensive telephone directory enquiry service.
The universal service is, therefore, an important factor supporting social development, ensuring that, in an open and competitive market, all citizens are guaranteed a means of fulfilling their most basic communication needs.
To date, the universal service has been provided by PT Comunicações, S.A., under a concession agreement concluded with the Portuguese State, the bases of which contract were approved by Decree-Law no. 31/2003 of 17 February.
Under the terms of paragraph 2 of article 99 of Law no. 5/2004 of 10 February, as amended and republished by Law no. 51/2011 of 13 September (Lei das Comunicações Electrónicas (Electronic Communications Law), hereinafter "LCE"), the process for designating the undertaking or undertakings responsible for the provision of the universal service shall be efficient, objective, transparent and non-discriminatory, ensuring that no undertaking is excluded a priori from being designated.
Furthermore, in paragraph 3 of article 99 of the LCE, it is stipulated that the process of selecting the undertaking or undertakings responsible for the provision of the universal service is to follow a tender, the regulation of which shall be approved by administrative regulation of the members of the Government with responsibility for the areas of finance and electronic communications.
Accordingly, the Portuguese State seeks to terminate the concession contract concluded with PT Comunicações, S.A., and seeks to instigate a tender procedure in order to designate the provider or providers of the universal service, thereby achieving compliance with the provisions of the LCE and with the provisions of European Union law which the LCE transposes; such actions also fulfil the commitments assumed in this respect under the terms of the Memorandum of Understanding on Specific Economic Policy Conditionality concluded with the European Commission, the European Central Bank and the International Monetary Fund.
In order to encourage participation in the selection process by the largest possible number of undertakings, the process of selecting the provider or providers of universal service is separated into three distinct tender procedures, corresponding to the different provisions of the universal service as referred to in article 87 of the LCE, namely, connection to a public communications network at a fixed location and provision of a publicly available telephone service over that connection, provision of public pay-telephones and provision of a comprehensive telephone directory and of a comprehensive telephone directory enquiry service.
Considering the level of expenditure associated with the tender for the connection to a public communications network at a fixed location and provision of a publicly available telephone service over that connection, as well as the provision of public pay-telephones, the Conselho de Ministros (Council of Ministers) is the entity competent to undertake the contracting decision pursuant to these procedures, while observing the provisions of paragraph 1 of article 36 of the Código dos Contratos Públicos (Public Procurement Code) and point e) of paragraph 1 of article 17 of Decree-Law no. 197/99 of 8 June.
The expenditure associated with these tenders is to be financed as set out in article 97 of the LCE.
In the case of the tender for the provision of a comprehensive telephone directory and of a comprehensive telephone directory enquiry service, even while said tender entails no expenditure, it is considered advantageous, given the intrinsic relationship between this tender and the previous tenders, that the contracting decision be likewise taken by the Conselho de Ministros (Council of Ministers) in the context of a broader decision-making process.
The Government therefore resolves to launch three tender procedures, which shall take the form of procedures restricted by prior qualification, with publication thereof in the Official Journal of the European Union.
As such, authorisation is given to commence the procedures to select the undertaking or undertakings to be awarded the provisions of the universal service of connection to a public communications network at a fixed location and provision of a publicly available telephone service, of provision of public pay-telephones and of provision of a comprehensive telephone directory and of a comprehensive telephone directory enquiry service.
Authorisation is also given to the allocation of expenditure associated with the first two procedures among different fiscal years, in view of the provisions of article 22 of Decree-Law no. 197/99 of 8 June.
Accordingly:
Pursuant to article 99 of Law no. 5/2004 of 10 February, as amended and republished by Law no. 51/2011 of 13 September (Lei das Comunicações Electrónicas (Electronic Communications Law) or "LCE"), pursuant also to paragraph 1 of article 36 and to article 109 of the CCP - Código dos Contratos Públicos (Public Procurement Code), to point e) of paragraph 1 of article 17 of Decree-Law no. 197/99 of 8 June, and to point g) of article 199 of the Constitution, the Conselho de Ministros (Council of Ministers) resolves:
1 - To contract provision of the universal service of electronic communications, which is considered as the minimum set of services, as defined in the law, of specified quality and at an affordable price, which is to be made available on a non-discriminatory basis, regardless of the geographical location of its users.
2 - To separate the process of selecting the provider or providers of universal service into three distinct tender procedures, corresponding to the different provisions of universal service as referred to in article 87 of the LCE, namely, connection to a public communications network at a fixed location and provision of a publicly available telephone service over that connection, provision of public pay-telephones and provision of a comprehensive directory and of a comprehensive telephone directory enquiry service.
3 - To authorize, under the terms of point e) of paragraph 1 of article 17 of Decree-Law no. 197/99 of 8 June, expenditure related to the award of the provision of the universal service of connection to a public communications network at a fixed location and provision of publicly available telephone services, which expenditure shall not exceed 74 829 762.80 (euros) excluding VAT as applied at the legally prevailing rate.
4 - To authorize, under the terms of point e) of paragraph 1 of article 17 of Decree-Law no. 197/99 of 8 June, expenditure related to the award of the provision of the universal service of provision of public pay-telephones, which expenditure shall not exceed 12 333 000 (euros) excluding VAT as applied at the legally prevailing rate.
5 - To determine that the procedure to be used in order to select the undertaking or undertakings awarded provision of the universal service of connection to a public communications network at a fixed location and provision of a publicly available telephone service, pursuant to point b), paragraph 1 of article 20 of the CCP, shall be a pre-contractual procedure restricted by prior qualification, with publication thereof in the Official Journal of the European Union.
6 - To determine that the procedure to be used in order to select the undertaking or undertakings awarded provision of the universal service of provision of public pay-telephones, pursuant to point b), paragraph 1 of article 20 of the CCP, shall be a pre-contractual procedure restricted by prior qualification, with publication thereof in the Official Journal of the European Union.
7 - To determine that the procedure to be used in order to select the undertaking or undertakings awarded provision of the universal service of provision of a comprehensive directory and of a comprehensive telephone directory enquiry service, pursuant to point b), paragraph 1 of article 20 of the CCP, shall be a pre-contractual procedure restricted by prior qualification, with publication thereof in the Official Journal of the European Union.
8 - To determine, in accordance with paragraph 3 of article 99 of the LCE, that it is incumbent upon the Minister of State and of Finance and upon the Minister of Economy and Employment to approve, by administrative regulation and with respect to the three procedures, the tender schedules, the tender specifications and the calls for proposals.
9 - To delegate to the Minister of Economy and Employment, under the terms of article 109 of the CCP, with the option of sub-delegation within the procedure panels, authority to practice all such acts as are to be undertaken pursuant to the procedures foreseen in the preceding paragraphs, which acts include appointment of the procedure panels, approval of the drafts of the contracts and award, on behalf of the Portuguese State, of the respective contracts.
10 - To authorise the allocation of such costs as are incurred in respect of the contracts as result from the procedure foreseen in paragraphs 3 and 5 of the present resolution, on the following basis:
2014 fiscal year- (euros) 7 482 976.28;
2015 fiscal year - (euros) 14 965 952.56;
2016 fiscal year - (euros) 14 965 952.56;
2017 fiscal year - (euros) 14 965 952.56;
2018 fiscal year - (euros) 14 965 952.56;
2019 fiscal year - (euros) 7 482 976.28.
11 - To authorise the allocation of such costs as are incurred in respect of the contracts as result from the procedure foreseen in paragraphs 4 and 6 of the present resolution, on the following basis:
2014 fiscal year - (euros) 616 650;
2015 fiscal year - (euros) 2 466 600;
2016 fiscal year - (euros) 2 466 600;
2017 fiscal year - (euros) 2 466 600;
2018 fiscal year - (euros) 2 466 600;
2019 fiscal year - (euros) 1 849 950.
12 - To determine that the amount specified for each year may be supplemented by the balance calculated as resulting in the preceding year.
13 - To establish that the expenditure resulting from the present resolution shall be financed as set out in article 97 of the LCE.
14 - The present resolution shall have effect as from the date on which it is approved.
Presidency of the Council of Ministers, 17 May 2012. - The Prime Minister, Pedro Passos Coelho.
