Article

Decree-Law no. 78/2022, of November 7

Amends Law no. 30/2021, of May 21, which approves special public procurement measures, the Public Contracts Code, and Decree-Law no. 60/2018, of August 3, which simplifies administrative procedures necessary for the pursuit of research and development activities.

Decree-Law no. 78/2022 was published on November 7, amending Law no. 30/2021, of May 21, which approves special measures for public procurement, the Public Contracts Code (“PCC”), and Decree-Law no. 60/2018, of August 3, which simplifies administrative procedures necessary for the pursuit of research and development activities.

 

1. Main changes to Law no. 30/2021, of May 21:

Decree Law no. 78/2022 clarifies the possibility of applying the special regime provided for in article 2 of Law no. 30/2021, for the procurement of contracts intended for the execution of projects financed or co-financed by European funds, including those integrated within the scope of the Recovery and Resilience Plan (“RRP”), whereby contracting entities may:

a) Initiate and carry out simplified open tender or restricted tender by prior qualification procedures, when the value of the contract is below the thresholds referred to in paragraphs 2, 3 or 4 of Article 474 of the Public Contracts Code;

b) Initiate and carry out simplified prior consultation procedures, with an invitation to at least 5 entities, when the value of the contract is, simultaneously, below the thresholds referred to in nos. 2, 3 or 4 of article 474 of the Public Contracts Code, and less than 750,000 euros;

c) Initiate direct adjustment procedures when the value of the contract is equal to or less than 15,000 euros;

d) Apply any of these procedures, and regardless of the value of the contract, to the execution of contracts regarding housing and decentralization, until December 31, 2026.

Until December 31, 2026, contracting entities may also apply the rules set forth in article 2 to the award of contracts in the information and knowledge technologies and health and social support sectors.

Another important change results from the new wording of article 19 of Law no. 30/2021, of 21 May, which renders ineffective any contracts entered into following the aforementioned procedures under special procurement measures that are not electronically sent to IMPIC, I.P., for publication on the respective portal.

Finally, article 2-A is added to Law no. 30/2021, which establishes a special regime for design-build contracts, under which, in public works contract formation procedures, the awarding authority may foresee the preparation of the execution project, as an aspect of the execution of the contract to be entered into. In such cases, the specifications shall include a preliminary study, and the drawing up of the execution project shall be the responsibility of the contractor. The base price set in the specifications shall specify separately the maximum amounts which the contracting authority is prepared to pay for the execution of the services involved in the design and the execution of the works. It should be noted that the contract to be entered into under this rule is not considered a mixed contract for the purposes of the provisions of article 32 of the Public Contracts Code.

 

2. Amendment to Decree-Law no. 60/2018, of 3 August:

Decree-Law no. 78/2022 only changes the wording of article 3/1 of Decree-Law no. 60/2018, which now provides that, in the context of the development of research and development activities, part II of the Public Contracts Code is not applicable to the formation of contracts for the lease, acquisition of movable assets or services, whose value is below the thresholds of article 474/3 of the Public Contracts Code, regardless of whether the contracting entity is a research and development institution or a funding entity.

 

3. Main changes to the PCC:

The new wording given to Article 24 of the PCC adds, to the cases provided for today which allow direct awards – i.e., whenever in a previous public tender or a tender limited by prior qualification, no bidder has submitted a bid, all bids have been excluded, or no candidate has presented a submission – the cases where the bids submitted are considered 'inappropriate' according to the European Directives, by cross-reference to the new wording of paragraph a) of no. 2 of article 70 of the Public Contracts Code, which adds to the causes for exclusion of bids the manifest disregard of the object of the contract to be entered into , and also the case where all applications have been excluded on the basis of Article 184/2 (c), (j) or (l).

Alongside this change, it is now foreseen that, for contracts below the thresholds of the of the directives, the direct award procedure may be used if all the bids or all candidates have been excluded in a previous public tender or restricted tender by prior qualification.

Decree-Law no. 78/2022 introduces a new paragraph to article 29 of the Public Contracts Code, allowing the choice of the negotiation or competitive dialogue procedure when, in a previous public tender or tender limited by prior qualification, all bids have been excluded on the grounds of the second part of paragraph a) or in paragraphs b) to g) of article 70/2 or in paragraphs a) to n) or Article 146/2, a) to n), that is, when the exclusion is based on material grounds (with the exception of manifest disregard of the subject matter of the contract and the failure to present any of the attributes or terms or conditions) or on formal grounds.

A new number 13 has also been added to article 42 of the Public Contracts Code, under the terms of which the specifications of the procedures for the formation of public works concession, public services concession and services acquisition contracts must include a clause determining the obligation to comply with the provisions of the new article 419-A, which stipulates that workers assigned to concessions with a term longer than one year will work under an employment contract of indefinite duration, and those assigned to concessions with a term equal to or less than one year may work under a fixed-term employment contract, provided that for a period of time not shorter than the term of the concession. Non-compliance with the obligation to hire workers in accordance with this regime constitutes a very serious offence, punishable by a fine of 7,500 euros to 44,800 euros, under the new paragraph (f) of Article 456.

As regards the aspects of contract performance included in the factors and sub-factors that densify the award criteria, the terms under which environmental and sustainability conditions may be taken into account for the purposes of conforming the specifications and densifying the award criteria have been clarified.

In construction contracts, the warranty period for defects relating to equipment included in the works, but which can be separated from it, increased from two to three years, in line with the changes introduced by Decree-Law no. 84/2021 of 18 October, which regulates consumer rights in the purchase and sale of goods, content and digital services, which also extended the warranty period for movable assets from two to three years.

Decree-Law no. 78/2022 further added article 57-A to the Public Contracts Code, entitled "Document demonstrating the structure of labor costs", under which the contracting entity may require in the invitation to tender, or in the program of the procedure, that tenders be composed of a document demonstrating the structure of labor costs necessary for the performance of the contract to be entered into, particularly when it concerns sectors in which the fixed cost of labor is decisive in price formation. This document must identify the costs resulting from benefits imposed by law or by collective labor regulation instruments.

 

4. Entry into force and effects

Decree-Law no. 78/2022 will enter into force on 2 December 2022 (the first working day of the month following its publication), and will only apply to public procurement procedures which begin after the date on which it enters into force and to contracts entered into following such procedures. This is without prejudice to the provisions of article 27/2 of Law no. 30/2021, of 21 May, regarding the amendments to article 370 of the Public Contracts Code, i.e. the amendments related to complementary works, which apply to contracts that: a) were entered into following procedures started after its entry into force date and b) are in execution on the date of its entry into force, provided that the basis for the modification arises from a fact that occurred after that date.

 

To access to the entire wording of Decree Law no. 78/2022, of November 7: https://files.dre.pt/1s/2022/11/21400/0000800020.pdf

For more information on this subject, please contact:
ritsantos@ctsu.pt

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