Portugal's misguided upcoming revision of its procurement law

In the fall of 2025 I got wind that the Portuguese government was going to review the Public Contracts Code in short notice. This revision was described as a thorough affair and not a simple nip and tuck.

In a discussion on Linkedin I was assured the draft would be ready within 3 months, so around Christmas or early January at the latest. At the time I expressed incredulity with both the decision to review the Code when the Directives are themselves under review and also with the very tight timeframe for a draft to be produced. My reservations were then compounded when the Commission announced its workplan for 2026 that included a Regulation to replace the Directives with a first draft before the summer 2026.

Fast forward to late February 2026 and there is still no draft revision of the Public Contracts Code in sight. However, yesterday the minister of State Reform which is responsible for the revision, announced at a public event that such revision is indeed forthcoming and that it will not wait for the Directives own revision process. In fact, he argued that since EU law is changing this is a sign that the Portuguese law needs amendment as well!

The minister argued that part of the problem with public procurement in Portugal lies in the complexity created by the code itself more than in EU law and that Portugal should use its procurement law as an enabler for its economy "as other countries do." Furthermore, the minister also said that Portugal is ready to "test the limits of EU law" in this regard.

There is much to unpack here but I shall start by saying this is yet another example of Portugal strategically dis-applying EU public procurement law, with every successive revision departing from a correct transposition back in 2018 of the existing public procurement Directives. This was very evident in 2021 when under the guise of "facilitating" the deployment of the Recovery and Resiliency Facility the Code was amended to reduce a number of constraints on the behaviour of contracting authorities. What I think is happening today is a recognition that since the existing Directives are on the way out, Portugal may as well breach them because the legal implications of doing so are unlikely to be severe.* This is, evidently, misguided.

Beyond the brazenness of telegraphing a willingness to move into a legal grey area (ie, "testing the limits of EU law"), Portugal may be investing significant resources and political capital in thoroughly changing a fundamental piece of legislation...that may be obsolete in a few months or a year. It makes no sense.

Then there is the usual bugbear of blaming the Code (or any piece of legislation) for all failures, claiming it is the reason why it is impossible for public procurement to work well in Portugal. It is not the Code that determines the budget for each procedure. It is not the Code that determines the resources of each contracting authority that are allocated to public procurement. It is not the Code that determines the bureaucracy and red tape set elsewhere in the legislative framework (although regarding this one the government is also reviewing the Public Administrative Code). It is not the Code that determines fees to produce the certificates necessary to participate in public procurement procedures. It is not the Code that determines the liability, incentives or culture of the public administration. It is not the Code that determines the training and capacity of public procurers. I could go on and on, but I think the point is made sufficiently clear here.

I don't have out of the top of my head the most recent data about procedural duration in Portugal to check how out of whack it might be in comparison with other EU member States. Unfortunately the national procurement portal containing the data is unavailable at the moment. I guess this is also not a fault of the Code.

Furthermore, I have the impression that around 80% of all contracts in Portugal are awarded without competition via direct awards or its side kick, the prior consultation.

What the minister did not talk about as a reason for the delays in public procurement procedures is the collapse of the administrative court jurisdiction that is responsible for dealing with all procurement procedure disputes. This collapse is not new and since it is cheap and very easy to challenge procurement decisions in a very litigious culture, the consequences for public procurement practice are evident. Now, truth be told, that is part of the remit of the Justice Ministry and not its own, but if I were to improve procurement in Portugal in 2026, that is where I would start.

Having said all this I do agree with the minister overarching idea of simplifying and improving procurement practice in Portugal. For example, the minister also said that the government passed a law banning the demand of documents already in the possession of the State. That is an improvement, but the Directive already imposed that on the contracting authority and knowing the administrative practices of the country, I am curious about how those documents are going to be shared across the public administration. Passing the law is easy, changing practice however...

I also agree that the digitisation of public procurement has never been really done, but now is not the time to invest on improving the tech stack when the Directives are being reviewed and there is a recognition at EU level we have significant problems with the technological architecture of public procurement.

*I recall a conversation about these moves with a friend 3-4 years ago who told me that "Portugal no longer fears Brussels."