09.04.2020

Practice Areas: Public and Environment

COVID-19 | FAQs by the Public and Environment Law team

  1. Does the Law No. 4-A/2020, of April 6thapply to the qualification of the successful tenderer?

Yes. Pursuant to Article 2 of the Decree-Law No. 10-A/2020, of March 13th, which sets out an exceptional regime for direct awarding in the context of public procurement procedures launched to prevent, control, mitigate and treat the epidemic infection caused  by COVID-19, as well as to ensure the return to normality after the pandemic crisis , as amended by the Law No. 4-A/2020, of April 6th, the successful tenderer may be exempted from submitting the qualification documents foreseen in Article 81, 1, a) and b) of the Portuguese Public Procurement Code (CCP) including the ones that may be required for making payments. However, the awarding entity is entitled to request such documents at any time.

 

  1. May the successful tenderer be exempted from providing a guarantee in public contracts executed further to a direct awarding procedure in accordance with Article 2 of Decree-Law 10-A/2020, of March 13th?

Yes. Law No. 4-A/2020, of April 6th, introduced the paragraph 10 to the article 2 of the Decree-Law No. 10-A/2020, of March 13th, which foresees that the awarding entity may exempt the successful tenderer from providing the guarantee, regardless of the amount of the contract. This exemption only applies to the contracts executed further to a direct awarding procedure launched to prevent, control, mitigate and treat the epidemic infection caused by COVID-19, as well as to ensure the return to normality after the pandemic crisis

 

  1. In what extent will Law No. 4-A/2020, of April 6th impact on public procurement procedures?

This was a controversial issue under the initial version of the Law No. 1-A/2020, of March 19th. However, and further to the approval of Law No. 4-A/2020, of April 6th, the legislator has unequivocally clarified that the deadlines of public procurement procedures are not suspended anymore.

The procedural deadlines under the Public Procurement Code that were suspended pursuant to Articles 7 and 10 of the Law No. 1-A/2020, of March 19th, in its initial version, shall be resumed on the date of entry into force of the Law No. 4-A/2020, of April 6th.

Therefore, these deadlines should be considered as suspended between March 9th and April 7th, of 2020, resuming on this latter date.

Please note that the awarding entity responsible for the public procurement procedure may have a different understanding on this.

 

  1. Does the Law No. 4-A/2020, of April 6th have an impact on pre-contractual litigation proceedings?

Law No. 4-A/2020, of April 6th, clarifies that the general rule of suspension of deadlines in administrative and tax litigation proceedings, as set out in the initial version of the Law No. 1-A/2020 does not apply to public procurement litigation proceedings provided for in the Administrative Courts Procedure Code (CPTA).

Therefore, it should be noted that public procurement litigation proceedings shall run as usual pursuant to Article 7-A , 1, of the Law No. 1-A/2020, which was introduced by Law 4-A/2020, of April 6th.

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