Presidência do Conselho de Ministros (Presidency of the Council of Ministers)
Decree-Law
The economic and financial crisis of the last months has taken a worldwide dimension, and for this reason the European Union has aimed to tackle it in concert with its international partners. The Washington Summit of 15 November defined, on its own initiative, a challenging work programme, setting targets such as the coordinated recovery of world economy, a more effective regulation of financial markets, the improvement of world leadership and the departure from protectionism. This programme is to be implemented according to a pre-established timetable.
Following the referred programme, emergency measures required to re-establish a smooth functioning of the financial system and the confidence of economic agents were implemented in a coordinated manner in the European framework, having the European Council stressed the need for Member States to finalise these measures without delay.
Member States were specifically invited to take a number of actions to meet their particular situation, which entailed different room for manœuvre.
For that purpose, the European Council, in a meeting held in Brussels on 11 and 12 December 2008, approved a plan to recover the European economy which included, as regards measures assigned to the European Union, the support in 2009 and 2010 to fast-track procedures provided for in directives on public procurement, for the rapid implementation of major public investment projects.
The European Commission also acknowledged that the current exceptional economic situation requires an urgent implementation of the appropriate public investments, thus justifying the adoption of more rapid public procurement procedures provided for in Community law, namely 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. The European Commission also takes the view that the acceleration of award procedures will enable Member States to develop initiatives for the promotion of economy, via a rapid implementation of major public investment projects.
In line with the European Council mentioned above, the Council of Ministers of 13 December 2008 approved the ''Investment and Employment Initiative'' aimed at minimizing the effects of the international financial and economic crisis and at recovering the Portuguese economy, by resorting to a public investment plan that includes a set of measures specially targeted at the priority areas for the development of the country, with particular positive repercussions for the promotion of employment.
Taking into account that these measures must be urgently implemented and that short-term effects on growth and employment are required, this Decree-Law essentially lays down exceptional public procurement measures that render swifter and more rapid the procedures for concluding contracts in the fields of modernization of school facilities, promotion of renewable energies, energy efficiency and energy transmission networks, modernization of the technological structure - Next Generation Broadband Networks, and urban regeneration.
Measures provided for herein apply exclusively to restricted pre-qualification procedures or to direct award procedures targeted at the conclusion of public works contracts, public works concession contracts, contracts for the purchase or rental of movable property or for purchase of services, by the State, Autonomous Regions or municipal councils, in the strict scope of fields referred to above.
Action to be taken aims to shorten time limits for restricted pre-qualification procedures, as well as to provide for the adoption of direct award procedures, above the national thresholds, only for contracts focusing on the modernization of school facilities or the improvement of energy efficiency of public buildings. The regime distinguishes both goals, however, establishing for the improvement of energy efficiency in public buildings a public procurement threshold not exceeding (euro) 2 000 000. This possibility also safeguards competition, as at least three different bodies must be invited to tender in the scope of the direct award procedure.
The urgency of exceptional measures provided for herein is without prejudice to the compliance with transparency obligations required to give the appropriate degree of publicity to public contracts. For this reason, it is set out that the public procurement web portal must publicize a set of elements on direct award procedures, namely the identification of the successful tenderer, of remaining invited tenderers, as well as the contract price.
The self-government bodies of the Autonomous Regions were heard.
The Associação Nacional de Municípios Portugueses (National Association of Portuguese Municipalities) was also heard.
Therefore:
Pursuant to paragraph 1 a) of article 198 of the Constitution, the Government hereby decrees as follows:
Article 1
Subject-matter and scope
1 - This Decree-Law hereby establishes exceptional public procurement measures that apply to restricted pre-qualification procedures or to direct award procedures targeted at the conclusion of public works contracts, public works concession contracts, contracts for the purchase or rental of movable property or for purchase of services, required for the implementation of measures in the following priority axes:
a) Modernization of school facilities;
b) Renewable energies, energy efficiency and energy transmission networks;
c) Modernization of the technological structure – Next Generation Broadband Networks;
d) Urban regeneration.
2 - Direct award procedures may only be adopted for contracts focusing on the modernization of school facilities or on the improvement of energy efficiency of public buildings, pursuant to article 5.
3 - This Decree-Law covers the State, Autonomous Regions or municipal councils, either directly or through public institutes or public companies deemed to be contracting authorities under paragraph 2 a) and b) of article 2 of the Public Procurement Code, approved by Decree-Law no. 18/2008 of 29 January.
4 - Where the contracting authority integrates the direct or indirect administration of the State or the public enterprise sector, the priority referred to in paragraph 1 shall be established, for each investment or each set of similar investments, by order of the member of the Government responsible for the respective sector area.
5 - Where the contracting authority is a municipal council or a company of the local enterprise sector, the priority referred to in paragraph 1 shall be established, for each investment or each set of similar investments, by determination of the municipal council, under the law.
6 - Paragraph 4 applies to the Autonomous Regions, duly adapted.
7 - The adoption of the direct award procedure referred to in paragraph 2 must be mentioned in the order or determination referred to in the preceding paragraphs.
Article 2
Transparency
1 - The orders or deliberation referred to in the preceding article shall be published at the same moment in the Official Gazette and in the public procurement web portal.
2 - The conclusion of contracts following a direct award procedure under the exceptional regime provided for herein must be advertised by the respective contracting authority in the public procurement web portal, through an advertising form according to the model in the annex hereto, which is deemed to be an integral part hereof.
3 - The advertisement referred to in the preceding paragraph is a prerequisite for effectiveness of the respective contract, regardless of whether it is put into written form, namely for the purpose of any payments.
Article 3
Restricted pre-qualification procedure regime
1 - Where a restricted pre-qualification procedure is adopted for the purpose of conclusion of public contracts covered by article 1, and the respective advertisement is published in the Official Journal of the European Union, a time limit, of not less than 15 days from the date on which that advertisement was sent to the Publications Office of the European Communities, may be established for submitting tenders, except in the situation of a public works concession contract.
2 - The minimum time-limit provided for in the preceding paragraph may be 10 days, where the advertisement is drawn up and sent by electronic means, under the transmission format and modalities indicated in the web portal.
3 - Where the procedure mentioned in the preceding paragraph is adopted, a time limit to submit tenders, of not less than 10 days from the date on which the invitation was sent, may be set.
4 - The time limit mentioned in the preceding paragraph applies also to restricted pre-qualification procedures for the conclusion of public works contracts covered by article 1, the advertisement of which is not published in the Official Journal of the European Union.
5 - Contracting authorities may only provide specifications when sending the invitation to tender to qualified candidates, where in the scope hereof this is deemed to be appropriate as a measure to shorten restricted pre-qualification procedures.
6 - In the situation described in the preceding paragraph, the tender programme shall comprise, in annex, the identification of the subject-matter of the contract to be concluded and a brief description of tasks to be executed in implementation thereof.
Article 4
Negotiated procedure
Provisions in the preceding article apply to the negotiated procedure, duly adapted.
Article 5
Direct award procedure regime
1 - The direct award choice pursuant to paragraph 2 of article 1 is allowed for public works contracts which have a value lower than that in article 7 c) of Directive 2004/18/EC of the European Parliament and of the Council, of 31 March 2004, regardless of the nature of the contracting authority.
2 - Without prejudice to article 7 a) of Directive 2004/18/EC of the European Parliament and of the Council, of 31 March 2004, the direct award choice pursuant to hereto allows the conclusion of contracts for the purchase or rental of movable property or for purchase of services which have a value lower than that in article 7 b) of Directive 2004/18/EC of the European Parliament and of the Council, of 31 March 2004,including contracts referred to in paragraph 2 a) and b) of article 20 of the Public Procurement Code, regardless of the nature of the contracting authority.
3 - In the situation of public works contracts or public works concession contracts aimed at the improvement of energy efficiency of public buildings, the direct award choice only allows the conclusion of contracts of a value lower that (euro) 2 000 000.
4 - To procedures referred to in paragraph 2 does not apply the provision in paragraph 4 of article 20 of the Public Procurement Code.
5 - Provisions herein shall be without prejudice to those in articles 23 to 28 of the Public Procurement Code.
Article 6
Choice of invited bodies
1 - For the purpose of article 112 of the Public Procurement Code, as regards direct award procedures adopted under the regime laid down herein, contracting authorities must invite at least three different bodies to submit tenders, which shall be mentioned in the advertising form referred to in paragraph 2 of article 2.
2 - To direct award procedures targeted at modernization of school facilities shall not apply limitations in paragraphs 2 to 5 of article 113 of the Public Procurement Code.
Article 7
Prior hearing of candidates and tenderers
Minimum time limits for hearing candidates and tenderers, provided for respectively in articles 185 and 147, applied by reference made by paragraph 1 of article 162, all of the Public Procurement Code, shall be reduced to three working days, for the purposes hereof.
Article 8
Subsidiary application of the Public Procurement Code
1 - All matters which have not been specifically provided for herein shall be governed on a supplementary basis by the Public Procurement Code.
2 - Where the Public Procurement Code refers to values mentioned in articles 19 and 20 thereof, such references must to be interpreted, as far as procedures for concluding contracts referred to in article 1 hereof are concerned, as being made, respectively, to values referred to in paragraphs 1 and 2 of article 5.
3 - To rules of the Public Procurement Code on direct award procedures adopted under article 19 a) and paragraph 1 a) of article 20 of the Public Procurement Code shall apply, duly adapted, the direct award procedures concluded under paragraphs 1 and 2 of article 5 hereof, and all references made to the former must be understood as being made to the latter.
Article 9
National Public Purchasing System
As regards bodies required to comply with the National Public Purchasing System, this Decree-Law is without prejudice to paragraph 1 of article 4 of Administrative Rule no. 772/2008, of 6 August, and to paragraph 3 of article 5 of Decree-Law no. 37/2007, of 19 February.
Article 10
Autonomous Regions
This Decree-Law shall apply throughout national territory, without prejudice to the regional statutory instrument applicable in the Autonomous Regions of the Azores and Madeira which shall adjust the regime as necessary.
Article 11
Duration
1 - Without prejudice to the following article, the exceptional regime provided for in this Decree-Law shall apply to public procurement procedures where the decision to contract is taken by 31 December 2009.
2 - The direct award procedure provided for herein shall apply to public procurement procedures where the decision to contract is taken by 31 December 2009.
Article 12
Effective date
1 - This Decree-Law shall take effect as from 1 January 2009.
2 - This Decree-Law shall be without prejudice to public procurement procedures adopted under article 11 of Decree-Law no. 41/2007, of 21 February, as extended by Decree-Law no. 25/2008, of 20 February, which shall apply until their full completion.
Checked and approved in the Council of Ministers of 21 January 2009. – José Sócrates Carvalho Pinto de Sousa - Gonçalo André Castilho dos Santos - João Manuel Machado Ferrão - Manuel António Gomes de Almeida de Pinho - Mário Lino Soares Correia - Maria de Lurdes Reis Rodrigues.
Promulgated on 3 February 2009.
Let it be published.
The President of the Republic, Aníbal Cavaco Silva.
Counter-signed on 5 February 2009.
The Prime Minister, José Sócrates Carvalho Pinto de Sousa.
ANNEX
Model advertising form
(referred to in paragraph 2 of article 2)
Contracting authority: ... (identification of the contracting authority).
Successful tenderer: ... (identification of the successful tenderer).
Other invited bodies: ... (identification of bodies that were asked to tender, in addition to the successful tenderer).
Subject-matter of the contract: ... (brief description).
Contractual price: ... (price calculated on the basis of article 97).
Time limit to undertake main services covered by the contract: ...
Place to undertake main services covered by the contract: ...
