Tie-breaker criteria in the revision of the Public Contracts Code

The Revista de Direito Administrativo n.º 12, Setembro-Dezembro 2021 [Journal of Administrative Law no. 12, September-December 2021] publishes an article by Marco Real Martins on the tie-breaker criterion, critically assessing the amendments introduced on this matter in the 2021 revision of the Public Procurement Code. In the referred article, the Author concluded, namely, that the understanding of the tie-breaker criterion as the (subsidiary) awarding/choosing criterion of one of the best bids – and not of the best – is compatible with the compensatory nature of the model of evaluation of bids, when the criterion is multifactorial, or with the full equivalence of the single attribute of the bids, when the criterion is monofactorial, concluding that it would have been preferable if the legislator had limited itself to simply providing for i) the obligation to indicate in the program or in the invitation one (or more) tie-breaking criterion(s) (an obligation that already existed in 2017), and ii) that such criterion(s) should be extrinsic to the bids and to the qualities of the tenderers, granting freedom to the contracting entities to provide, as the main criterion, for the drawing of lots or any other “objective, transparent and impartial criterion” as a tie-breaking criterion. In addition, the improvements and misunderstandings brought about by the 2021 revision of the Public Procurement Code on this matter are also identified.

Read the full article by Marco Real Martins

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