The bidding processi Notice
Prior to the formal opening of the pre-contractual procedures, and in accordance with the transparency principle, the contracting authorities should disclose their annual procurement plan in a prior information notice according to the Public Sector Directive, for publication in the Official Journal of the European Union (OJEU).
Regarding agreements concerning utilities, the same must submit a periodic indicative notice in accordance with the Utilities Directive.
Moreover, all competitive tenders must be launched through publication of a tender notice, which may be at the national level (i.e., published in the Portuguese Official Gazette) or the European level if the contract's value exceeds EC thresholds.
Decree No. 371/2017, of 14 December, establishes the model contract notices applicable to the pre-contractual procedures under the PCC, and the completion and submission of the contract notices set forth in this Decree are made electronically for publication in both the National Gazette and the OJEU. The completion of the contract notices to be published in the National Gazette must also be completed and submitted. When there is a need to rectify an already published notice, it is mandatory to publish a rectification notice, which must indicate the number and date of the rectified notice. All the notices submitted in the electronic platform set forth in this Decree are made available (free of charge) to all potential interested parties.ii Procedures
The PCC provides for the following procurement procedures:
- direct award: one bidder will be invited to submit bids;
- prior consultation: at least three entities will be invited to submit bids;
- open procedure: any interested entity is free to submit bids after the publication of a tender notice;
- restricted procedure with pre-qualification (similar to (c) but comprising two stages: submitting technical and financial qualification documents, and selecting candidates; and submitting bids);
- negotiated procedure: including the same two phases as the procedure in (d) and a third phase for the negotiation of bids;
- competitive dialogue: whenever a contracting authority is not able to specify a definitive and concrete solution for the contract and launches a tender to which bidders submit solutions; and
- partnership for innovation: whenever a contracting authority intends the performance of R&D of goods, services or innovative works, with the intention of further purchasing it.
Both the prior consultation procedure and the partnership for innovation were introduced in the PCC with its 11th amendment in 2017.
In general, awarding authorities may freely choose to adopt an open procedure or a restricted procedure with pre-qualification. For contracts designed for the utilities sector, awarding authorities may freely choose between two procedures: the negotiation procedure or competitive dialogue. The only special procedure applicable to the utilities sector is the qualification system.
Regarding the defence and security sector, Decree-Law No. 104/2011 provides three procedures: competitive dialogue; a restricted procedure with pre-qualification (both governed by the rules of the PCC); and the negotiation procedure, which may or may not be preceded by a contract notice.
Further to the European directives stating the importance of simplifying and dematerialising procurement procedures with a view to ensuring greater efficiency and transparency, the PCC opts unequivocally for electronic procurement, and the awarding authorities are bound to adopt electronic procurement procedures.
In fact, Decree No. 57/2018, of 26 February, regulates the operation and management of the public procurement portal (called 'BASE'). This portal was designed to centralise the most important information relating all pre-contractual procedures, which must be carried out electronically as required by the PCC. It is a virtual space where the elements regarding to the pre-contractual procedure and performance of public contracts are publicised, thus enabling their follow-up and monitoring.iii Amending bids
The general rule that applies to all cases is that tender documents and bids must not be altered during the whole procedure. Exceptions are, however, expressly foreseen.
The tender documents may be rectified by the contracting authority until two-thirds of the time limit for the submission of bids has elapsed. Interested parties are given until a third of the time frame has elapsed to identify errors and omissions in the tender specifications, which will subsequently be subject to approval by the contracting authority. Any rectification of errors and omissions after this deadline will be the cause for the extension of the deadline for presentation of bids. Moreover, any rectification regarding errors and omissions must not imply amendments to any of the tender documents' essential aspects. Whenever such amendments occur, the deadline for presentation of bids should be extended.
Further, after the award decision and before the signing of the contract, the contracting authority may propose changes to the contract content, provided such changes are imposed in the public interest and it is objectively demonstrated that the bid ranking would remain unchanged should the proposed adjustments be reflected in the bids. Nonetheless, the proposed changes cannot violate any of the tender documents' imperative settings nor reflect the adoption of another bidder's bid. Likewise, there are certain situations in which bids may be subject to amendments. Such is the case whenever bid negotiation occurs or, in the case of direct award with one bid, whenever the bidder is requested to improve its bid.