Some further thoughts about Portugal's response to COVID-19

A few days ago I wrote a post about Portugal's knee-jerk reaction to the COVID-19 crisis and the changes introduced to the Public Contracts Code by the new Decree-Law 10-A/2020. It is fair to say I was far from impressed. And the more I think about the more concerned I become.

The Public Contracts Code as amended to transpose the Directives from 2014 is not a great piece of legislation, particularly in the way it handles low value contracts, ie those that are not covered by the Directives themselves. For a country with perennial issues with corruption the lackadaisical approach taken was a concern.

Having said that, the Code included some checks and balances which provided a modicum of control to the award of these low value contracts. Most, however, have been set aside by the Government in the Decree-Law 10-A/2020. It is worrying that a crisis would be used to change what should already be an exceptional legal regime, namely that of awarding contracts directly based on extreme urgency. It is true that in Portugal not much care has been given to the interpretation of 'extreme urgency' let alone regulating its use, but even the half heart attempt by the Code was something.

Not so with the Decree-Law 10-A/2020 which is no more than a cynical attempt at pandering to the public sector criticism (and not only) about the legal regime and a move back straight to the dark ages of transparency in low value contracts. It is not a step forward, it is two steps back.

I could understand if the new regime was indeed temporary and exceptional as claimed by its recitals. Although Article 1 tries to tie the legal changes to the pandemic response or aftermath the articles pertaining to public procurement rules do not include *any* restriction whatsoever on their use. It could - and should – be argued that the exceptions provided in this Decree-Law are to be narrowly interpreted within the scope of what is provided on Article 1 and no more. But I doubt it will happen in practice.

Furthermore, despite the reference to its temporary nature, the Decree-Law does not include a sunset clause, therefore it will remain in force until revoked. Would it not been preferable to include either a time limit or a set of conditions to be met that would bring about the withdrawal of this piece of legislation?

I would certainly have preferred a simple set of guidelines/guidance to be issued by IMPIC to explain how to use the flexibility already contained in the Public Contracts Code as the UK did.

When it rains, it pours

In addition to Decree-Law 10-A/2020,  Law 1-A/2020 from 19/03/2020 also touches public procurement, albeit indirectly. Article 7 suspends a number of time limits and deadlines for interactions with the public sector. Most are connected with the courts but also with other public bodies as well. Article 7(6)(c) extends the suspension to any deadline to be acted upon by natural or legal persons without any sort of exception.

What does that mean in the context of public procurement? That *all* procurement procedures in Portugal are to be suspended once they reach a stage that provides a time limit for the benefit of economic operators (submission of documentary evidence, tenders or standstill).

Surely that was not the intention of the lawmakers, but it surely looks to be like the consequence. And as with the Decree-Law, Law 1-A/2020 is neither time limited or subject to any sort of sunset clause.