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Public Procurement and Pre-contractual Litigation under discussion: Analysis and evaluation of the proposals

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The conference “Pre-contractual Public Procurement and Litigation – in light of the revised public procurement code”, was held in Madeira. The event was attended by Marco Real Martins, partner of BAS, whose presentation was subordinated to the theme “Analysis and evaluation of proposals”.

 

The lawyer began by pointing out that in these matters, the changes brought by Decree-Law no. 111-B/2017, of August 31, are minimal and materially insignificant and in some cases are merely positive solutions. (e.g. the evaluation of the actual technical teams proposed by competitors for the performance of a contract, where this has a significant impact), and in other cases merely cosmetic changes in the CCP regime, as is the case of the “most economically advantageous tender criteria”, which now takes on a dual modality, namely single factor or multifactor, and in the first case it may still be possible to evaluate only the price (or cost), contrary to the initially rumours.

In terms of the analysis of the proposals, the lawyer stated that the reasons for their exclusion could be material (which constitute cases of violation of the Tender Documents or similar situations) or formal (like the violation of procedural formalities), which doesn’t constitute a significant change.

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Marco Real Martins also stressed that the evaluation of the proposals is a “competitive and relational process (hence, it presumes that there is more than one proposal) to measure the performance of the tender proposals”. In terms of the configuration of the evaluation model, it continues to be designed as an additive and compensatory model for assigning scores to proposals.

The lawyer also stated that the construction of the evaluation model presupposes an in-depth knowledge of the needs to be filled and the constraints of the contracting authority, since the model is never neutral.

Lastly, Marco Real Martins also warned of the novelty of providing in the invitation or the competition program, as the case may be, a tie-breaking criteria between proposals, which is an adequate preventive measure of true situations of legal antinomies, since that, in the event of a tie, the contracting authority still has a duty to award and the tie does not constitute a ground for not awarding the tender.

The meeting took place on September 21 and 22, in the auditorium of the Madeira Electricity Company, in Funchal, organized by JM-Madeira. The main changes in the new Public Contracts Code were discussed at this meeting, as well as the challenges faced by public entities.

 

Marco Martins. Contratação Pública e Contencioso Pré-Contratual | Public Procurement and Pre-contractual Litigation

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