In this text, Marco Real Martins examines the new regime in relation to the changes introduced to the Public Procurement Code, namely its application to the centralization of purchases in the health sector.
Article 256-A of the Public Procurement Code (PPC) is one of the main developments introduced by Decree-Law n. 111-B / 2017, of August 31 (applicable, therefore, only to procedures initiated after December 31, 2017). In the wording of the Rectification Statement n. 36-A / 2017, in order to respond to one of the main (and correctly so) criticisms addressed to the regime of the framework agreements, with special focus on the cases in which acquiring entities are obliged to resort to them to meet their purchasing needs, namely their limited flexibility due to the fact that they ‘close’ the market, which is thus limited to the selected co-contractors, for the duration of the framework agreements – although in the meantime other economic operators, who are not party to the framework agreements, are able to offer more favourable prices than others.
The fact that the system of framework agreements for acquiring entities is compulsory without any restrictions may, in certain cases, lead to the appearance of objectively unjustifiable solutions.
In this context, the new Article 256-A of the PPC establishes a regime allowing acquiring entities, in certain situations, to contract “outside” of such framework agreements.
Contracting outside of the framework agreements
Under Article 256-A, such exemption only occurs if it is established that “the use of the framework agreement would result in the payment of a price per unit of measure of at least 10% higher than the price shown by the contracting authority for object with the same characteristics and quality level” (no. 1). That demonstration is a burden on the contracting authority, and it is a requirement of acquisition legality outside the framework agreement (where this is, of course, mandatory), to be done, in a document, when deciding to contract the procurement procedure outside the framework agreement (which presupposes, first, compliance with the various procedural “steps” referred to in no. 7, below).
The “price per unit of measure of the framework agreement” to be considered is, in the case of the SPMS’s CPAs in force (with several suppliers and in which at least the price is subject to competition), “the lowest price indicated by suppliers in the procurement procedures under it“(see no. 2 b)).
In this regard, it is asked how to determine which is the “lowest price indicated by the suppliers in the procurement procedures under him”? It cannot be the price of the last purchase as this criterion is only provided for contracts under framework agreements in the form where all terms of performance of the contract are fixed in advance, which is not the case for the current SPMS framework agreements (see no. 2 a)).
The answer to this question is in no. 7 of this legal diploma:
“7 – In the framework agreements corresponding to the category provided for in Article 252 no. 1 b).
(a) the decision to contract under the framework agreement shall be taken at the same time as the invitation to the entity or entities for the purposes of this Article; and
(b) Where declarations and documents provided for in no. 3 of this Article are submitted, where the contracting authority is able to demonstrate the requirements of no. 1, it shall determine that no award is made under the framework agreement, by applying the provisions of Article 79 no. 2.”
Summary
In summary, in order to contract outside the SPMS framework agreements (in which at least the price is subject to competition and the purchase is mandatory under them) it is necessary to follow the following steps sequentially:
1º – opening a procedure under the framework agreement – to this end, invitations to the co-contractors of the framework agreement should also be sent to the entities (or entity, as chosen by the contracting authority) not included in the framework agreement identified in the decision to contract, pursuant to no. 7, paragraph a);
2º – to request in the invitation to those other entities (or entity) not included in the framework agreement (since the entities that are part of the framework agreement cannot present the declarations and documents provided for in no. 3, see. no. 8), the presentation of the declarations and documents identified above, as the case may be, as provided for in no. 3, since this is the documentation that will allow the demonstration of the minimum savings, namely, in no. 1 (see paragraph b ) of no. 7: “… allows the contracting authority to demonstrate the requirements of no. 1 …”), which legitimizes the acquisition outside the framework agreements;
3º – the tenders received – from the entities covered and not covered by the framework agreement – then the minimum savings referred to in no. 1 can be proved: if the lowest price presented in this procedure by the entities that are part of the framework agreement is at least 10% higher than the price indicated by any of the invited entities (or by the invited entity, see above) that are not part of the framework agreement, that prove is made. In that case, this procedure (where one or other of the entities covered and covered by the framework agreement has been invited) will culminate in a decision not to award “under the framework agreement”, and that non-awarding decision, together with the its reasons, are precisely the demonstration of savings under no. 1, with the intention of promoting acquisition outside the framework agreement), be notified to all competitors in accordance with Article 79 no. 2 by force of the provided in paragraph b) of no. 7 of Article 256-A of the PPC.
It should be noted that: it is not stated in Article 256-A no. 7 paragraph b) that this procedure (with an invitation to entities covered and not covered by the framework agreement) should culminate in a decision not to award , but rather that it is determined that “there is no award under the framework agreement”, which means that in some cases (i.e. in the cases identified in A) and B) but not in C)) , this procedure will end with a double decision: (i) a decision not to award under the framework agreement and (ii) where appropriate, a decision awarding the best proposal submitted by an invited entity not participating in the framework agreement and enabling the contracting authority to demonstrate the requirements of no. 1 (in particular the minimum savings indicated therein). In the case referred to in (C), however, it is necessary to promote a new procedure, independent of the last, to be determined according to the value of the contract, in terms of Part II of the PPC (see no. 6: “… acquisition or rental of goods or acquisition of services outside the framework agreement shall follow the procedure applicable under Part II, with the invited entity being bound to submit a proposal under the corresponding pre-contractual procedure, at a price not higher than that stated … “).
Proof of minimum savings
The proof of such savings in made according to the following terms (no. 3):
A) In the case of a contract for the acquisition or lease of movable property or the acquisition of services whose contractual price is equal to or less than € 5000, by means of (i) a pro forma invoice or equivalent document presented by the invited entity, (ii) a statement by the invited entity that the good or service has the same characteristics and level of quality of the goods or services covered by the framework agreement.
In this case, if the minimum savings referred to in no. 1 are obtained and documents (i) and (ii) above are obtained (proving that savings and equivalence of goods / services), “the award can be made by the competent body for the decision to contract, directly on “the document referred to in (i) above (the pro forma invoice or equivalent document submitted by the invited entity) (no. 4).
Notwithstanding the fact that the law is not absolutely explicit in this respect, the tender submitted by that entity in the procedure referred to in no. 7 (culminating in a non-award decision) is awarded in the same procedure (see explanation above), in accordance with no. 4.
B) In the case of a contract for the acquisition or lease of movable property or for the purchase of services whose contractual price is less than € 144,000 or, as the case may be, € 221,000, by means of (i) a declaration from the invited entity accepting the content of the tender of the framework agreement drawn up in accordance with the model in Annex I to the PPC and (ii) a “document containing a simplified version of the attributes of the proposal, according to which the invited entity is willing to contract, including the aspects of the performance of the contract to which the contracting entity wishes the entity to be bound”. As regards the document referred to in (ii), the standard in question (cf. (ii) of paragraph b) of no. 3) only requires the presentation of the attributes of the proposals (price, and any other aspects that are evaluated), where applicable, “the aspects of the performance of the contract to which the contracting entity wishes the entity to be bound” – the latter, although the law does not explicitly state it, are the elements required in the no. 1, paragraph c) of Article 57 of the PPC, only applicable to non-competitive aspects of the contract, i.e. not evaluated, defined by limits and not by fixed terms, binding the contracting entity to a specific obligation of that term which is not subject to competition within the margins allowed by the tender documents (e.g., the tender documents provide for a maximum delivery period, not a fixed deadline, requiring competitors to be bound by a specific deadline, which might or might not be equal to the maximum period, without this being relevant for the evaluation of the proposals).
In this case, if the minimum savings referred to in no. 1 are obtained and the documents (i) and (ii) above are obtained, these documents correspond to a proposal, followed by, therein – the term “subsequent” as well as the reference made to the equivalence of the documents submitted (from no. 2 paragraph b)) to a proposal, provided for in no. 5, lead to the understanding that the inviting procedure for entities covered and not covered by the framework agreement, in accordance with no. 7, it is “used”, that is, it is still within its scope (even to try to use the procedural activity carried out) that the best proposal will be awarded (submitted by an invited entity which is not a participant of the framework agreement and enabling the contracting authority to demonstrate the requirements of no. 1, where appropriate); the difference in regime provided for in no. 5 in relation to no. 6 (see the explanation above) may also be invoked in this respect – the procedural rules of part II, in accordance with no. 5 (final part) of Article 256-A of the PPC (no. 5: “… following the subsequent procedure as set out in Part II”).
C) In the case of the drawing of a contract for the acquisition or rental of movable property or the acquisition of services where the contractual price is equal to or greater than € 144,000, or, as the case may be, € 221,000, (i) by declaration of the invited entity of acceptance of the content of tender documents of the framework agreement, drawn up in accordance with the model in Annex I to the CCP.
Without prejudice to this, the contracting entity must demonstrate the minimum savings referred to in no. 1 – and in accordance with no. 7, as explained above.
In this case, the contracting authority demonstrates the requirements of no. 1, “the acquisition or rental of goods or purchase of services outside the framework agreement shall follow the procedure applicable under Part II, with the invited entity being bound to submit a proposal under the corresponding pre-contractual procedure, for a price not higher than that declared in the procedure referred to in no. 7.
As mentioned, in this particular case, it is necessary to promote a new procedure, independent of that, to be determined according to the value of the contract, in terms of part II of the PPC (see no. 6: “… acquisition or lease of goods or acquisition of services outside the framework agreement shall follow the procedure applicable under Part II, with the invited entity being bound to submit a proposal under the corresponding pre-contractual procedure, at a price no higher than that stated … “).
Marco Real Martins, Lawyer and partner at BAS
