23 November 22 | Lisboa

Decree-Law 78/2022, published on 7th November 2022, continues the effort to create measures which assure procedural simplification pertaining simplified administrative procedures (special public procurement measures).

Decree-Law 78/2022, published on 7th November 2022, amends Law 30/2021, the Public Procurement Code (CCP) and Decree-Law 60/2018.

This Decree-Law continues the effort to create measures which assure procedural simplification and expediting, already promoted by Law 30/2021, which approved special public procurement measures, and by Decree-Law 60/2018, which simplified administrative procedures necessary for the pursuit of research and development activities.

In this context, a special design-build regime is created (integrated in the regime of special public procurement measures) which makes it possible to eliminate unnecessary expenditure of time and resources by the contracting entity, in cases where it considers that the market is in a better position to draw up a project for the execution of a given work.

The diploma also clarifies and broadens the special measures, namely extending the deadline for their application to matters relating to housing and decentralisation, information and knowledge technologies and the health and social support sectors until 31st December 2026. In addition, the applicable proceedings for pre-contractual procedures relating to the implementation of the Recovery and Resilience Plan are clarified.

Access to the direct award procedure is restricted to proposals that are considered "unsuitable" under Directives 2014/23/EU, 2014/24/EU and 2014/25/EU, in addition to the situations where no competitor or candidate has submitted a tender, already provided for in the CCP.

For contracts below the thresholds of the Directives, the direct award procedure may now be used if all tenders or all candidacies have been excluded in a previous public procurement or restricted procurement by prior qualification.

The Decree-Law also provides for the possibility of adopting the negotiated procedure and the competitive dialogue procedure in situations originating in "unacceptable tenders" or "irregular tenders" under the Directives.

Regarding contract performance, the terms under which environmental and sustainability conditions may be revealed for the purposes of drawing up the contract documents and densifying the award criteria are clarified. It is also clarified that the possibility to reserve contracts to certain entities for the formation of a set of commonly used contracts with a value below the threshold of the Directives depends upon them not showing a certain cross-border interest.

It is now possible for contracting authorities to request a document from competitors in pre-contract procedures demonstrating the structure of labour costs necessary for the performance of the contract. Provisions concerning the employment contract regime applicable to employees assigned to certain concession and service procurement contracts are also established.

In this context, it is determined that workers assigned to concessions with a term longer than one year perform their activity under an employment contract of indefinite duration and workers assigned to concessions with a term equal to or less than one year may perform their activity under a fixed-term contract, as long as that period is not shorter than the term of the concession. However, there are some exceptions, namely, workers who perform occasional tasks or specific, non-lasting services in the context of the performance of the concession.

This Decree-Law enters into force on 2nd December 2022 and will only apply to public procurement procedures initiated after its entry into force and to contracts entered under such procedures.

Please note, your browser is out of date.
For a good browsing experience we recommend using the latest version of Chrome, Firefox, Safari, Opera or Internet Explorer.