Does COVID-19 have any impact on my relationship with the Public Administration (namely as pertains to meeting deadlines or observing any formalities)? To what extent?

Broadly speaking, the consequences of COVID-19 on relations between private individuals may also, with certain adaptations, be extrapolated to the relationship between individuals and the Public Administration, notably and always subject to a case-by-case analysis:

  • qualification as a "force majeure" event, as grounds for not complying, in whole or in part, with obligations provided for in an administrative contract, in particular with regard to deadlines (depending on what the contract specifically provides for and provided that a causal link between the illness and the impossibility of meeting deadlines is evidenced, as well as the impossibility or unenforceability of taking alternative measures, or their insufficiency, and always without prejudice to the counterparty's duty to inform), in accordance with, for example, Article 36 of the Legal Framework for Administrative Contracts, approved by the Decree-Law No. 50/2015, of November 17th)
  • claiming the occurrence of an abnormal and unforeseeable change in circumstances as grounds for amending the contract and/or restoring the financial balance
  • claiming a "justifiable reason" as grounds for excusable non-compliance with deadlines before the Public Administration (or, at least, as a ground for requesting an extension of the deadline)
  • grounds for the suspension of administrative deadlines - in this context, the legislator provided for the application of the judicial vacation regime to procedural and procedural acts, as long as the exceptional situation lasts, under the terms detailed in Article 6 of Law 83/IX/2020, including administrative deadlines to the benefit of individuals
  • extension of the deadline for compliance with certain obligations - in this regard, Law 83/IX/2020 providing that the ordinary meetings of the governing bodies of the local authorities expected for the months of April and May 2020 may be held until May 30, 2020
  • In addition, the obligation to hold the meetings of the governing bodies of the municipalities in public until May 30th, 2020 was also suspended, without prejudice to their recording and availability on the website of the local authority as soon as technically possible
  • maintenance of titles provisionally in force, even after the respective term of validity has elapsed - within this scope, Article 25 of Decree-Law No. 36/20, provides that, during the period of validity of this Decree, licenses, authorizations or other types of administrative acts shall remain valid regardless of the respective term
  • reduction of the formalities inherent to the notification to individuals of administrative conduct related to the state of emergency - in this context, article 26 of Decree-Law No. 36/20 establishes that the regulations and administrative acts implementing the Decree are effective by merely notifying the addressee, electronically or otherwise, the other applicable formalities being dispensed with, the publication of the acts or regulations on the website of the competent entities being considered sufficient for this purpose

 

Could the COVID-19 be grounds for streamlining or simplifying acquisition procedures?

In this context, the following changes introduced by Law 83/IX/2020 are worth highlighting:

  • possibility of adopting direct award based on "imperative urgency", pursuant to Article 39, no. 1, paragraph a) of the Public Procurement Code, for the execution of public works contracts, rental or acquisition of movable assets and services, provided that the respective object is, directly and exclusively, related to the needs caused by Covid-19
  • possibility of adopting the simplified direct award when the lease agreement or acquisition of movable assets or acquisition of services does not exceed 600,000$00
  • waiver of prior approval by the Audit Court of contracts entered into following these direct awards

On the other hand, it is provided the possibility of temporary requisition of goods and services by joint order of the members of the Government responsible for air transport of the Internal Administration and Finance, based on urgency and public interest, in relation to public and private infrastructures (including hotel and related infrastructures) that have conditions to be converted into quarantine and isolation spaces, collective transport of passengers, clinical analysis laboratories and private health clinics that have capacity for internment and isolation of suspicious cases.

 

Could the COVID-19 be grounds for administrative streamlining, simplification and cutting through the red tape?

Yes. Law No. 83/IX/2020 introduces simplifications on several levels, with emphasis on:

  • requests for authorization from the financial and sectorial supervisory entities, whenever required by law, shall be considered granted, in the absence of reply, 24 hours after remittance to the authority with powers to grant them
  • multi-annual expenses resulting from the conclusion of the contracts concerned here are considered granted if the authorization request by means of an ordinance to extend charges to the member of the Government responsible for the area of finance is not rejected within three days
  • budgetary amendments involving reinforcement, in return for other actual expenditure items, are authorised by the member of the Government responsible for the respective sector area
  • when necessary, the withdrawal of funds to meet the objectives set out in Law No. 83/IX/2020 is considered tacitly granted three days after submission of the request.

Additionally, tacit approval periods were suspended for the authorizations and licenses required by individuals.

 

Can I withdraw a bid already submitted in a public procurement procedure claiming that because of COVID-19 I can no longer meet the requirements to which I am bound?

The disruption caused by COVID-19 could be grounds to release the bidder from the bid submitted provided that it is duly justified (such disruption must be an event which the bidder was not required to be aware of at the time of preparation of the bid and that demonstrably renders performance impossible or excessively burdensome).

 

Does this context entitle interested parties to participate in public tenders and to enjoy a longer deadline to submit bids and offers?

The law does not expressly impose this, but considering the provisions in Article 94.2 of the Public Procurement Law, it is advisable that contracting public entities grant a period longer than the standard period to submit bids or proposals – except in the event of manifest and pressing urgency.
The disruption caused by the COVID-19 could further warrant extending deadlines that are already ongoing.

 

 

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This information is being updated on a regular basis.

All information contained herein  and all opinions expressed are of a general nature and are not intended to substitute recourse to expert legal advice for the resolution of real cases.