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).
  • Claiming the occurrence of an abnormal and unforeseeable change in circumstances as grounds for amending the contract and/or restoring the financial balance (depending on what the contract specifically provides for and provided that it can be shown that there is a need to amend it in accordance with the nature of the contract and the circumstances)
  • Claiming a "justifiable reason" as a ground for excusable non-compliance with deadlines before the Public Administration (or, at least, as a ground for requesting an extension of the deadline, provided it is justifiably impossible to comply with it).
  • Administrative licenses, authorizations and other permissive acts are kept in force even after the deadline settled for its expiry (article 13 of Decree no. 10/2020 of 6 August).

 

Impact on public procurement procedures

 

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

COVID-19 related events may serve as potential ground for the use of:

  • Direct award procedure, based on the existence of an "emergency following an unforeseen event that endangers public health", pursuant to Articles 92(1)(a) and 94(1)(a) of the Procurement Legal Regime.
  • Simplified contract, based on the existence of an "urgent and unforeseen case", pursuant to article 30 of the Legal Regime of Public Contracts, as long as the respective value does not exceed USD 1,000.00.
  • 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 constitute grounds to release the bidder from the submitted bid, 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 65.2 of the Legal Regime of Public Contracts, applicable to procurement procedures by tender, Public Services may, when there are justifiable reasons, extend the deadlines for the periods that prove to be adequate.

 

 

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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.