Ministerial Orders no. 371/2017 and no. 372/2017

On December 14th 2017, the Ministerial Orders no. 371/2017 and no. 372/2017 were published, following the publication of the Decree-Law no. 11-B/2017, of August 31st, which proceeded to the 9th modification to the Portuguese Code of Public Procurement, approved by the Decree-Law no. 18/2008, of January 29th, which transposed to the Portuguese legal order the European Parliament and the Council Directives no. 2014/23/EU, 2014/24/EU and 2014/25/EU, of 16th April 2014.

The abovementioned Ministerial Orders shall enter into force on January 1st 2018.

I. Ministerial Order no. 371/2017

The standard forms for the publication of notices of tendering procedures can be found in attachment to the Ministerial Order no. 371/2017. These refer exclusively to the procedures set forth in the Portuguese Code of Public Procurement, namely: i) the public tender; ii) the urgent public tender; iii) the restricted procedure; iv) the negotiated procedure; v) the competitive dialogue; vi) the innovation partnership; vii) the design contest; viii) the competition for proposals; ix) the implementation of a dynamic purchasing system; x) the implementation of a qualification system; xi) the acquisition of social services and of other specific services; xii) the award of social services and of other specific services; xiii) the public auction on the sale of movable property and, at last; xiv) the intention by public works concessionaries, which are not qualified, however, as contracting authorities, to celebrate public works contracts.

The abovementioned Ministerial Order also sets forth the manner by which the standard forms are to be filled in, as well as how they must be sent for publication in the Official Journal of the European Union. It also compels public procurement electronic platforms to make the notices available to all potential interested parties.

II. Ministerial Order no. 372/2017

Regarding the Ministerial Order no. 372/2017, it establishes all requirements relating to the qualification documents to be presented by the successful tenderer, such as being in possession of a valid permit, as well as the manner in which this documentation is to be presented within a tendering procure.

Namely, the qualification documentation to be presented by the successful tenderer within leasing contracts or contracts for the acquisition of movable property, as well as contracts for the purchase of services, public works contracts and, finally, public works concessions.

It also specifies that all qualification documents presented by the successful tenderer must be drawn up in Portuguese. However, if by its nature or source, they are to be drawn up in a foreign language, the successful tenderer is then obliged to attach a legally certified translation into Portuguese.

Finally, it is worth noting that the Ministerial Order at stake establishes that, should the successful tenderer be a group, the documents set forth in Article 81(1) of the Portuguese Code of Public Procurement shall be made available by all its members.