Portugal: analysing procurement proposals of parties manifestos (III)

After the first two entries into the series (here and here), it is now the turn to look at the more left-wing parties in Portuguese parliament: Bloco de Esquerda (GUE/NGL) and the CDU (GUE/NGL).

Bloco de Esquerda (GUE/NGL)

Bloco de Esquerda offers three proposals connected with public procurement: restricting participation to economic operators with collective agreements; excluding off shore based economic operators from participating in public procurement and centralising purchases in the healthcare sector.

The first proposal follows the sadly common line of thought that procurement policy (and practice) should be hamstrung to achieve results that have nothing to do with the act of buying in and of itself. That is the whole reason why we have exclusions grounds for instance. These are the 'poor man's' way of achieving political goals without spending the political capital in making the necessary legal changes to achieve that goal fully. Trying to use public procurement to force companies into having collective agreements is yet another example of this. It is blatantly illegal for contracts above thresholds since the exclusion grounds list  of Art 57 Directive 2014/24/EU is exhaustive. Therefore the obvious solution would be instead to change national labour law to demand this from *all* companies…in Portugal. As for externalising this requirement to economic operators complying with labour law in the EU Member States where they're based, well, I think the problem here is self-evident. The short-sightedness of the measure is compounded by making this an yearly requirement, ie requiring new collective agreements to be signed every year. Not even in Denmark we have those as a rule o thumb!

The second proposal Bloco makes is to exclude from procurement off-shore connected economic operators, ie those that are either owned directly or indirectly by vehicles based on offshores or whose the ultimate beneficial owners are connected with off-shores. As with the previous suggestion, it cannot be done for contracts above thresholds except if the economic operator is itself based on an offs-shore jurisdiction outside the EEA in a country that is not party to the GPA nor has a free trade agreement with the EU covering procurement.

Lastly, Bloco suggests the centralisation of healthcare procurement for high volume goods. I have nothing against this idea, but I'm puzzled the party seems to be unaware of the healthcare central purchasing body SPMS. I don't know if SPMS is working well these days or its exact remit but Bloco is not making its suggestion around improving SPMS but simply…creating it again?

Grade: 1/10


CDU is the main electoral vehicle of the Communist Party in Portugal, in coalition with the Green Party. However, technically calling it a coalition these days is a stretch: CDU has been running in all elections since 1987 so the Greens are anything but independent. In fact, even this pretence may have been dropped since the manifesto I will be looking at is that of the Communist Party since the Green Party one is *checks notes* 7 pages long.

Their main idea for procurement is a revision of the Public Contracts Code. As with all proposals thus far this is more of an ambition than a roadmap, but it contains enough detail to warrant some discussion.

CDU wants to make procurement procedures and 'award conditions' more agile while reducing 'artificial obstacles and bad faith litigation.' It wants to do so within a 'framework of transparency and absolute respect for the public interest.' There is more here than meets the eye. Agility in this context probably means 'simplifying'. We're about to see in the UK what the 'simplification' of procurement rules leads to in practice. Above thresholds what can be done to simplify procurement rules has already been done in Portugal and in some instances *beyond* what could legally be done. Below thresholds there is space for improvement but if anything, rules there are already *too* flexible and simple. Looking at the Public Contracts Code there is no obvious area of improvement on the 'award conditions' which I assume as meaning award criteria.

As for artificial obstacles your guess is as good as mine, but my hunch is that they would like requirements for participation to be lowered?  Or maybe I am just projecting my own personal wishes in here.

More can be said about bad faith litigation though. Procurement litigation in Portugal is one of the fundamental problems with the system although I would not class it in general as being abusive or done in bad faith. It is too easy and cheap for the capacity of the administrative courts leading to long times between a challenge and a final decision. The correct approach is not to blame the legal use of tools available but instead to solve the underlying problem.

CDU also has in its manifesto a minor proposal. When discussing R&D investment it calls for procurement rules to be adapted to this end. I see no problem with this idea despite the lack of detail and take this as an endorsement of the need to improve innovation procurement either directly in the procurement phase or as pre-commercial procurement.

Grade: 3/10

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