Procurement process

Relevant procedure

What procedures normally apply to a PPP procurement? What evaluation criteria are used to award a PPP transaction?

The execution of a PPP contract should be preceded by one of the following award procedures: open public tender, restricted tender (by previous qualification), negotiation procedure or competitive dialogue procedure (see article 31 of the PCC).

The PCC provides one criterion to award a public contract: the most economically advantageous tender for the contracting authority. There are two possibilities on which to assess this: the best quality-price ratio or the lowest price. In the specific case of a PPP, it is usually based on the first possibility.

Consideration of deviating proposals

May the government consider proposals to deviate from the scope or technical characteristics of the work included in the procurement documentation during the procurement process, without altering such terms with respect to other proponents? How are such deviations assessed?

It is possible for the awarding entity to consider alternative proposals if such possibility is foreseen in the tender documents, which must refer the terms in which such alternatives are admitted and how the same shall be assessed and evaluated. It is mandatory to ensure comparability of tenders (so the same can be assessed and evaluated) and to guarantee equal treatment between bidders.

Unsolicited proposals

May government parties consider unsolicited proposals for PPP transactions? How are these evaluated?

PPP legislation in Portugal does not regulate unsolicited proposals.

Government stipend

Does the government party provide a stipend for unsuccessful short-listed proponents or otherwise bear a portion of their costs?

No. There is no stipend provided to unsuccessful proponents or bidders, nor does the government support a portion of their costs.

Financing commitments

Does the government party require that proposals include financing commitments for the PPP transaction? If it does not, are there any mechanisms during the procurement process to ensure that the applicable PPP transaction, once awarded, is financeable?

According to Portuguese law (article 2, paragraph 1 of Decree Law No. 111/2012), the private partner is responsible for the financing, in whole or in part, of the PPP.

Legal opinion

May the government ask its counsel to provide a legal opinion on the enforceability of the PPP agreement? May it provide representations as to the enforceability of the PPP agreement?

Legal opinion or representations are not relevant concerning the enforceability of the PPP agreement.

Restrictions on foreign entities

Are there restrictions on participation in PPP projects by foreign entities? May foreign entities exercise control over the project company?

There are no restrictions on participation in PPPs regarding entities from EU or European Economic Area (EEA) countries. In any case, when the government defines an asset as an essential strategic asset, the Portuguese Council of Ministers may oppose the execution of operations resulting, directly or indirectly, in the acquisition of control, directly or indirectly, by a person or persons from third countries to the EU and the EEA on strategic assets, where it is determined that these changes may affect, on a serious basis, the defence and national security or the safety of the country’s supply of basic services to the national interest, in accordance with article 3, paragraph 1 of Decree Law No. 138/2014 of 15 September 2014.