Legal alert no. 60

Adjustment of the last update of the Public Procurement Code to the Autonomous Region of Madeira.

On March 15, 2018, the Regional Decree-Law no. 6/2018/M, was published in the Portuguese Official Gazette, approving the seventh amendment to the Regional Decree-Law no. 34/2008/M, of August 14, adjusting the Public Procurement Code (“PPC”) approved by the Decree-Law no. 18/2008, of January 29, to the Autonomous Region of Madeira.

In 2014, a set of important European directives on public procurement were approved, namely, the following: Directive no. 2014/23/EU, on the award of concession contracts, Directive no. 2014/24/EU, on public procurement, Directive no. 2014/25/EU, on procurement by entities operating in the water, energy, transport and postal services sectors, and Directive no. 2014/55/EU, on electronic invoicing in public procurement.

The transposition of the referred directives into the national law was performed by the Decree-Law no. 111-B/2017, of August 31, amended by the rectification statement no. 36-A/2017, of October 30, and by the rectification statement no. 42/2017, of November 30.

The new rules of the PPC entered into force on January 1, 2018, and, pursuant to the Decree-Law no. 111-B/2017, the same are applicable to the public contractual procedures started after that date and to the contracts resulting from those procedures.

In this context, the Autonomous Region of Madeira adapted the new PCC legal framework to the specificities of the region. The main aspects related to the same are identified below.

A coefficient of 1.5% is applicable to the amounts established in the PCC to select certain public contractual procedures. Those amounts cannot breach the thresholds amounts established by the European legislation.

The documents submitted by the candidates or bidders accompanying their application or bid, respectively, shall be prepared in accordance with the new templates attached to the referred legal statute.

The bidders not complying with the legal conditions set forth in the PCC in relation to the qualification documents shall submit a statement of commitment identifying that situation.

The new figure of the contract manager was introduced in the regional legislation with slice differences in relation to the general PCC legal framework. Apart from its main obligations, the contract manager shall follow and ensure the compliance with the statement obligations related to the generated revenue in the Autonomous Region of Madeira, namely, the submission of the qualification documents.

Besides, occurring an inspection before a provisional acceptance of works, the contract manager shall verify if all contractual and legal obligations of the building contractor have been fulfilled, notably, as to the subcontracts.

In order to ensure the exact and punctual compliance with all legal and contractual obligations with the entrance into the agreement, the winning bidders shall provide a deposit in the maximum amount of 3% of the contractual price. The amount of the deposit shall take into consideration the complexity and the contract value.

The participation of candidates or bidders not complying with the tax legal obligations in the region and the non-submission of the qualification documents by the winning bidder related to tax obligations, within the deadlines set for that purpose, constitute very serious administrative offences punishable with fines. The penalty of prohibition from participating in public tenders may also be applicable according to the general terms provided for in the PPC.

The regional legal framework entered into force on March 16 and applies as from January 1, 2018. The rules related to the deposit amount will only take effect as from January 1, 2019.

To access the full text of the Regional Decree-Law no. 6/2018/M, please click here.