Legal Alert | Public Procurement - New measures approved

On 2 December, Law 43/2024, amending Law 30/2021 of 21 May (Law 30/2021), which approved special public procurement measures, was published (previously amended by Decree-Law 78/2022 of 7 November).

This new legislation approved four new special public procurement measures, by means of the corresponding addition of provisions, to regulate the following:

• A special preliminary audit by the Court of Auditors of acts and contracts for the implementation of projects financed or co-financed by European funds (Article 17-A);
• Urgent administrative actions of pre-contractual litigation to challenge awards relating to contract formation procedures for operating projects financed or co-financed by European funds (Article 25-A);
• Recourse to arbitration in public works contracts or public goods or services contracts which are financed or co-financed by European funds (Article 25-B);
• Contract formation for concentrating services in the Campus XXI building (Article 25-C).

We shall now highlight the main aspects of the new schemes approved:

Prior audit by the Court of Auditors of acts and contracts financed by European funds

• Regime applicable to contracts formed under the procedural regime provided for in Law 30/2021 and the procedural regime resulting from the Public Contracts Code (PCC), which are intended for the implementation of projects financed or co-financed by European funds, including those pending a decision of the Court of Auditors on the date of entry into force of this amendment;
• Effectiveness and effects of acts and contracts prior to the decision of the Court of Auditors, with the provisions of Article 45 of Law 98/97 of 26 August not applicable;
• If the Court of Auditors concludes that the legislation in force is in compliance, it shall issue a decision on its merits, accompanied by recommendations where appropriate, without this preventing the performance of the act or contract in question;
• As a rule, checking for signs of legal non-compliance only requires the referral of the case for concomitant auditing and eventual establishment of financial liabilities, in general terms, without this preventing the performance of the act or contract in question;
• Immediate cessation of the effects of the acts or contracts that are the object of the decision only in cases of total neglect of the contract formation procedure or the assumption of unreasonable charges in its own budget.

Exceptional regime for urgent administrative action for pre-contractual litigation

• Regime applicable to contracts formed under the procedural regime provided for in Law 30/2021, the procedural regime resulting from the PCC, as well as to contracts formed in accordance with other legislation on public procurement;
• Automatic suspension of the effects of the contested act in urgent administrative actions of pre-contractual litigation to challenge awards relating to contract formation procedures for operating projects financed or co-financed by European funds, provided that these are submitted within 10 working days of notification of the award to all bidders;
• Possibility of the defendant requesting the provisional lifting of the automatic suspensive effect, by checking (i) that the 10 working days following notification of the award decision have elapsed for all bidders and (ii) the risk of loss of contract financing for the performance of a project financed or co-financed by European funds (the applicant need only attach a document proving the decision to finance the project to which the contract belongs);
• The claimant may request that the automatic suspensive effect be maintained. It shall be lifted when, taking due account of the public and private interests concerned, the losses which would result from maintaining it are greater than those which may result from its removal.

Recourse to arbitration

• Regime applicable to contracts in progress on the date of entry into force of this amendment, as well as to those that may be entered into after that date;
• Possibility of being subject to arbitration in disputes which, due to their significance, may jeopardise compliance with contractual deadlines, the loss of funds in public works contracts or the supply of goods or services contracts financed or co-financed by European funds, regardless of whether such contracts provide for the dispute to be resolved by the administrative courts;
• In the event of an action pending before an administrative court, the claims to be submitted to the arbitration tribunals shall coincide with the claim and the cause of action in the case to be extinguished, with only the claim reduced.

Contract formation for concentrating services in the Campus XXI building

• Possibility of adopting simplified prior consultation procedures by contracting authorities, with an invitation to at least five entities, in accordance with Law 30/2021, for entering into contracts for the lease or acquisition of movable assets, the acquisition of services or the performance of public works intended for the organisation, programming, design and implementation of the public service concentration in the buildings of Campus XXI under Decree-Law 43-B/2024 of 2 July, provided that the value of the contract is below the thresholds referred to in Article 474 (2), (3) or (4) (as the case may be) of the CCP;
• Exemption from prior audit by the Court of Auditors. Contracts must be sent electronically to this court, as a condition of their effectiveness, for concomitant auditing, no later than 10 days after their conclusion, accompanied by the respective administrative process.

Effective date

• The decree-law comes into force on 16 December.