This paper provides an overview of the qualification, selection, and exclusion of economic operators rules under Portuguese public procurement law (approved by Decree-Law no 18/2008, hereinafter “Public Contracts Code 2008”). As Directive 2014/24/EU is yet to be transposed into national law, the chapter will focus on the law which transposed Directive 2004/18/EC. This chapter shows that the Portuguese law departs significantly from the EU template on rules regarding qualification, selection and exclusion of economic operators in public procurement. The Public Contracts Code is at times more similar to the new Directive 2014/24/EU than the Directive 2004/18/EC it transposed.
Ungated copy available at SSRN (for now).
Forthcoming later this year on Vol 8 of the European Procurement Law Series.
Regulation 107 creates the obligation in contracting authorities of having "regard" for any guidance on qualitative selection produced by the Minister for the Cabinet Office. It is noteworthy to point out that Regulation 107 states contracting authorities shall regard the guidance, but does not establish a clear cut obligation to follow it. It seems all the Regulation demands is for evidence the guidance was regarded, ie taken into account in the decision-making process, not that it is followed. It remains to be seen what consequences await contracting authorities who end up disregarding such guidance, as paragraph 4 and 5 only create an obligation to report to the Cabinet Office why the guidance was not followed. Under this system, it appears that every single instance of non-compliance will lead to the reporting obligation. Call me old fashioned, but I prefer rules/regulations over guidance.
Paragraph 2 defines what constitutes qualitative selection as any process that leads to economic operators being selected to take part in procurement procedures or excluded from them, carried out in accordance with Regulations 57 to 65.
Paragraph 3 hints as to what kind of guidance the Minister for the Cabinet Office may issue: getting rid of questionnaires or burdensome, excessive or disproportionate questions and how the assessment is to be carried. This list is not exhaustive.