Procurement implications of the weekend's wildfires in Portugal

Picture by @edgarvnovo

Picture by @edgarvnovo

The picture above illustrates what happened to a 750 year old pine tree forest near Leiria. 80% of it burned down on Sunday. The same day, 37 people died from the multiple wildfires, adding up to the tally of almost 70 from earlier summer fires.

There's much to be said about conservation, forestry policies and eventually firefighting but I'm not an expert on those matters so I will keep my comment to what I know: procurement. There's a procurement story behind Sunday's tragedy.

According to Publico, the contract between Portugal and most private firefighting air services came to an end at the beginning of the month. Until the end of September the country had 47 available and on Sunday only 18. Had the fire happened on Sunday and the count would have been simply 2.

Again, according to Publico the contract had reached its end (4 years) and thus could not be extended or amended so that planes and helicopters could be brought into service over the weekend.

This is bullshit. Sorry, let me rephrase that: it is technically correct (in a very narrow sense) but it is still bullshit. Here's why:

1. Framework agreement could not be renewed, but that's irrelevant

I am starting from the assumption the contract between the State and the multiple private operators was a framework agreement, ie an umbrella agreement that guarantees the availability of material during certain times of the year but not the need to actually use the equipment if unnecessary. My assumption is based on the specific duration of the contract (those 4 years) and the fact the contract is not available on the BASE portal, as framework agreements do not have to be registered there (I have long railed against the black box of framework agreements in terms of data access)

It is technically correct a framework agreement can last for up to 4 years (Art. 256(1) of the Public Contracts Code) even though at least in other countries there has been considerable debate if that limitation of time covers the performance of the underlying contracts themselves. In this particular case, it might have been possible to argue that the framework had expired but the performance remained until the end of the year for example.

But even if a very risk averse procurement official would balk at the suggestion above, there is a very easy (and popular way) to ensure a contract was in place to cover the unseasonal period of hot weather affecting Portugal.

2. Direct award due to urgency

Again, my views on direct award are well known. 90% of the contracts in Portugal are awarded directly, covering slightly below 50% of the procurement spend of the country. Still, no one in the Home Ministry had the lightbulb moment of reaching out to the framework participants and offer them a short term contract with the same conditions as those in the framework. This could legally and easily have been done under article 24(1)(c) of the Public Contracts Code (the same one Lisbon City Council used as an excuse for the Miradouro de Sao Pedro public works).

This is to me the critical procurement mistake done over the last few weeks when it became apparent the fire risk would remain high in October. Just look at the twitter timeline of the Portuguese Weather Service. Since October 2nd there were no days without at least 15 local councils in the country deemed at red alert for fire risk. It was known as well that Ophelia would also hit Portugal and if it did not bring rain we all know what the wind does to the probability of wildfires... 

But sure, the problem is that a contract had ended. Speaking of which...

3. Poor management (current framework agreement)

I don't know who thought having a contract running from October to October was a great idea. It's not as if climate change suddenly happened once the contract was already underway. That the contract does not run from January to January is beyond me.

Therefore questions need to be asked about the specific duration of the contract. Even conceding the point it could not go over 4 years it could surely have been shorter. Why did it not end in December 2016 so that a new 4 year framework agreement could run from January onwards? Of course the answer is probably going to be: no one thought about it at the time and it was simply decided to make it as long as possible.

As if that was not bad enough, apparently Portugal is now without any framework agreement in place since a new "international tender" (in reality a bog standard open procedure) is being "prepared." 

4. More poor management (lack of framework agreement going forward)

How is it possible that there is no framework agreement already in place to kick in once the old one expired? Why is it still "being prepared"? It should have been prepared probably over a year ago well in advance of the end of the current one!

Open procedures take a long time, particularly in a country where litigation in public procurement procedures is a given and a lengthy affair. In consequence, Portugal may end up without firefighting air services for a good while.

No prizes for what will be done once the next fire season starts if the framework agreement is not in place (direct award under art. 24(1)(c) of course)

5. Austerity

Now, there may be a simple justification for the lapse in the air services contract: money, or better said the lack of it. I have heard multiple rumours on the grapevine that the current Government managed to get the deficit under control was not by slashing budgets but simply making it impossible for said budgets to be spent. Did the same thing happened in this instance? 

I cannot claim and won't that having more air support would have saved lives or diminished the tragedy. What I can say is that it is not because of procurement procedures or procurement rules that air support was not available on Sunday. 

In any event, there's no point in invoking malice at this moment while incompetence remains a reasonable explanation.