Procurement in Times of Crisis: The Portuguese Experience

Abstract

Since 2020, Portugal has enacted legislation specific to addressing the SARS-CoV-2 pandemic, with two distinct moments in this process: one dedicated to the pandemic situation in particular and a more recent one, connected with European funding and its implementation, various energy crises, and effects of economic warfare. As regards the complex and intricately entangled Covid-19 legislation, swift public procurement procedures were established to comply with certain requirements to guarantee competition, since the pandemic constituted an abnormal and unforeseeable circumstance that did not fit into the forecast of urgency provided for in the Directives. Legislation was issued on the modification of long-term contracts, yet with presented a highly debatable solution for the changes’ implementation and prohibiting the use of pecuniary compensation. While that legislation has since been repealed, transitory rules and exceptions whose scope is still difficult to understand in full took its place – in the main, the current special legislation on public procurement, Law 30/2021, intended for executing the implementation plan for projects financed or co-financed by European funds, which contains several rules that deviate from the regime resulting from the European directives, plus re-establishment of monitoring by the Court of Auditors, creation of an Independent Commission for supervising the implementation of the associated legislation, and the passing of extraordinary price‑revision legislation. The paper presents a brief report on this Portuguese legislative context and on the respective monitoring by both jurisdiction-linked and non‑jurisdiction-associated bodies. It directs special attention to the difficulties and perplexities raised by the regimes involved.