The bidding processi Notice
Depending on the value and scope of the contract, contracting authorities are, as a rule, bound to advertise the award procedures. Except for the direct award and the prior consultation procedures, all public procurement procedures are required to be advertised in advance either only in the official gazette, the Journal of the Republic or also in the OJEU.
The information to be included is provided for in Annex V of the 2014 Public Contracts Directive (for announcements to be published in the OJEU) or in Ministerial Order No. 371/2017 (for notices to be published in the Journal of the Republic) and varies according to the type of procedure.
Also, according to Article 34(1) of the PCC, prior to the formal opening of the pre-contractual procedures and in accordance with the transparency principle, the contracting authorities should disclose for publication in the OJEU their annual procurement plan in a prior information notice that complies with the model provided in Article 48(1) of the 2014 Public Contracts Directive, provided that the aggregate contractual value of the contracts to be executed during the following 12 months equals or exceeds the European thresholds.
Contracting authorities may also send a prior information notice for publication in the OJEU that complies with the model provided in Article 31(2) and (3) of the 214 Concession Contracts Directive in the case of service contracts for social and other specific services listed in Appendix IV of that directive.
Additionally, pursuant to Article 35 of the PCC, contracting authorities in the utilities sector may send an indicative periodic notice for publication in the OJEU, as provided for in Article 67 of the 2014 Utilities Contracts Directive and covering a period of 12 months.
In defence and security contracts, the awarding authorities must adopt a negotiation procedure with publication of the tender notice, or the restrictive tender (with previous qualification). However, in some cases, the parties may choose a negotiation procedure without publication of the tender, or the competitive dialogue procedure.ii Procedures
The PCC provides for the following main award procedures:
- direct award: one bidder is invited to submit a bid;
- prior consultation: at least three entities are invited to submit a bid;
- open procedure: any interested entity is free to submit bids after the publication of a tender notice;
- restricted procedure with pre-qualification: similar to the open procedure but comprising two stages:
- submission of technical and financial qualification documents; and
- submission of bids;
- negotiation procedure: including the same two phases as the restricted procedure with pre-qualification and a third phase for the negotiation of bids;
- competitive dialogue: when a contracting authority is unable to specify a definitive and concrete solution for the contract, and launches a tender for which bidders submit solutions; and
- partnership for innovation: when a contracting authority seeks to contract the performance of activities of research and development of goods, services or innovative works, with the intention of then purchasing that performance.
Contracting authorities are bound to use electronic systems of procurement and auctions pursuant to Law No. 96/2015 of 17 August, which establishes the legal framework for the access and use of electronic platforms for public procurement purposes.
The security and defence contracts regime under Decree-Law No. 104/2011 of 6 October provides only three procedures: competitive dialogue (governed by the rules of the PCC); restricted procedure with pre-qualification (governed by the rules of the PCC); and a negotiation procedure, which may or may not be preceded by a contract notice.
Decree-Law No. 30/2021 of 21 May sets some special rules for the execution of award procedures for contracts financed or co-financed by European funds. In these cases, the awarding entities may use:
- a simplified public tender and a simplified restricted procedure with pre-qualification, when the contract's value is lower than the above-mentioned thresholds;
- a simplified prior consultation, with the invitation of at least five entities, when the value of the contract is lower than the thresholds mentioned above and, in any case, below €750,000; and
- a simplified direct award when the value of the contract is lower than or equal to €15,000.
As a general rule, the option to amend bids is not available. However, this option is available in procedures that involve negotiation with bidders.
The PCC establishes the procedures that may involve negotiation with bidders:
- the prior consultation;
- the open procedure;
- the competitive dialogue;
- the partnership for innovation; and
- the negotiation procedure.
In all other procedures, a negotiation phase is not allowed and, therefore, modification of the bid is also prohibited.
It is not mandatory to have a negotiation phase in the prior consultation or the open procedure, but the contracting authority may include it in the tender specifications. In the open procedure, the negotiation phase can only be included for concessions contracts and for public works and services, but only in these last two cases if the contract value is below the European threshold.
Currently, the PCC provides that the adoption of a competitive dialogue or a negotiation procedure may occur if:
- the contracting authority's needs cannot be fulfilled by adapting easily available solutions;
- the goods or services include the adoption of innovative solutions;
- it is not objectively possible for the contract award to occur without any previous negotiation because of the contract's specific legal or financial nature, complexity, or risk; and
- it is not objectively possible to precisely define, in a detailed manner, the technical solution to be implemented by referring to a certain rule or standard.