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EPPPL 112019 Implementation of e-Procurement in Portugal I 43

The Directive 2014/24/EU and the

Implementation of e-Procurement in Portugal -
Part I
Raquel Carvalho*

Portugal has been leading the way in the implementation of e-procurement within the Eu-
ropean Union. This paper,presented in two Parts,starts, in this Part , by explaining the
framework of e-procurement,describingthe Portugueseexperience regardingthe use of elec-
tronic platforms based on factual data assembled by the Portuguese regulatory body. Part
11 describes the legal regime imposed by the European Union Law thoroughly, particularly
by article 22 of Directive 2014/24/EU, which is contained in a specific ruling as it has oc-
curred before the full 2014 Directives transposition.To provide thefull picture of e-procure-
ment in Portugal,the paper also explains the projected intention of the Directive transposi-
tion and the actual legal ruling enshrined in the Public ContractsCode (PCC).

Keywords: e-Procurement;Directive 2014/24/EU Implementation

I. Introduction: What is Meant by e-
Procurement?'
Electronic procedure has become an omniscient ex
pression within the law. The need to simplify the de
cision making procedure, to make it more transpar
ent, less expensive and, therefore, more accessible to
all has made the legislator more aware of the use of
an instrument born in other fields of human knowl
edge. We have been witnessing many law fields adopt
decision making procedures with the help of elec
tronic means. In Portugal, for instance, this has been
the case with several administrative procedures re
garding administrative law, the Administrative Pro
cedure Code, environmental and urban planning law
and the Public Contracts Code.
In what respects public procurement, however, we
2
must address a wider expression: e procurement!

DOI: 10.21552/epppl/2019/1/7
Associate Professor Universidade Cat6lica Portuguesa, CEID
Centro de Estudos e lnvestiga ao em Direito, Faculdade de
Direito Escola do Porto, Rua Diogo Botelho, 1327, 4169-005,
Porto, Portugal. For correspondence: <rmcarvalho@porto.ucp.pt
>.This paper is financially supported by national funds through
FCT Foundation for Science and Technology, IP,within Project
ULD/D[R/04859/2013. It was partially presented at Reform of the
public procurement law - iii. Strategic procurement, Poland, in
September 2014. Since, at the time, the Directive transposition
had not yet occurred in Portugal, the present text has been updat-
ed with new data and the analysis of the legal provisions that
have come into force since 2014.
The Portuguese Public Contracts Code can be retrieved at
<https://dre.pt/application/file/a/1 08085917> (in Portuguese on-
ly). The PCC provisions mentioned in this Part I refer to the ver-
sion prior to the 2017 Reform.
1 EU Key policy documents: Directive 2014/55/EU the European
Parliament and of the Council Directive 2014/55/EU on electronic
invoicing in public procurement OJ L 133, 6.5.2014, 1-11, (adopt-
ed on 16 April 2014); the Classical Sector Directive 2014/24/EU
the European Parliament and of the Council Directive 2014/24/EU
on public procurement and repealing Directive 2004/18/EC OJ L
94, 65-242. The deadline for EU countries to transpose the direc-
tive was 18 April 2016. EU countries could postpone the applica-
tion of the provisions on e-submission until 18 October 2018,
though); the Communication on 'End-to-end e-procurement to
modernise public administration' (adopted on 26 June 2013 by
the European Commission European Commission, Communica-
tion of 26.6.2013 concerning End-to-End E-Procurement
COM/2013/0453 final, <http://eur-lex.europa.eu/legal-content/EN/
ALL/?uri=CELEX:52013DC0453>), accessed 9.10.2016; the Com-
mission adopted a Communication on 'A strategy for e-procure-
ment' (adopted on 20 April 2012 European Commission,
20.04.2012 'A strategy for e-procurement', Communication from
the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of
the Regions, <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/
?uri=CELEX:52012DC0179&from=EN>, accessed 9.10.2016.
2 For a detailed report of EU documents regarding the use of
electronic means, and the relation with the 2020 Strategy and the
Digital Agenda for Europe, see F Lichbre and S Richetto, 'Frame-
work agreements, dynamic purchasing systems and public e-
procurement', in F Lichbre, RCaranta and S Treumer (ed), Mod-
ernising Public Procurement- The new Directive (DJOF Publish-
ing 2014) 188-195. Some of the documents that are cited and
analysed therein will also appear in the text.
44 1 Implementation of e-Procurement in Portugal
But what is implied in that expression? According
to the Green Paperon expanding the use of e Procure
ment in the EU SEC(2o1o) 1214,
e Procurement refers to the use of electronic corn
munications and transaction processing by gov
eminent institutions and other public sector or
ganisations when buying3
supplies and services or
tendering public works.
Franiois Lichere and Sara Richetto include 'innova
tion of internal proceedings and of the network rela
tionships between suppliers and other organiza
tions'.4 E procurement, therefore, means much more
than the mere use of an electronic platform. It in
volves the absolute changeover from paper to dema
terialised procedures, accompanied by the transfor
mation of all public administration performance. But
it also means the introduction of new phases in pub
lic procurement procedures, and new procedures
such as e auctions and dynamic purchasing systems,
and the gathering of information, its safeguard, allo
cation and disclosure. This dimension is vital for the
accountability of both contracting authorities and
economic operators/contractors, not only during pro
5
cedure but also during contract execution.
The EU has rethought the whole procedure in or
der to achieve a wide range of goals alongside the
abovementioned general outcomes:
with digital tools, public spending should become
more transparent, evidence oriented, optimised,
streamlined and integrated with market condi
tions.6
3 European Commission, Communication of 18.10.2010 concern-
ing the 'Green Paper on expanding the use of e-Procurement in
the EU', SEC(2010) 1214, <https://eur-lex.europa.eu/legal-content/
GA/TXT/?uri-CELEX:52010DC0571 >, accessed 9.10.2016.
4 F Lichere and S Richetto, 'Framework agreements, dynamic
purchasing systems and public e-procurement', in F Lichere, R
Caranta and S Treumer (ed), Modernising Public Procurement -
The New Directive (DJOF Publishing 2014) 187.
5 Sharing this opinion, L V Sousa, 'Alguns problemas colocados
pela assinatura eletr6nica das propostas?' (2013) 9 Revista de
Contratos Publicos 59, 60.
6 European Commission, E-procurement, <https://ec.europa.eu/
growth/single-market/public-procurement/e-procurementen>,
accessed 12.11.2018.
7 This goal was also underlined in: European Commission, Commu-
nication of 26.6.2013 concerning End-to-End E-Procurement
CON/2013/0453 final, <https://eur-lex.europa.eu/legal-contentEN/
ALL/?uri-CELEX%3A52013DC0453>, 453, accessed 19.9.2016.
8 European Commission, Communication of 26.6.2013 concerning
End-to-End E-Procurement COM/2013/0453 final, <http://eur
-lex.europa.eu/legal-content/EN/ALL/?uri-CELEX:52013 DC0453
>, accessed 19.9.2016.
EPPPL 112019
There are significant gains, both economical and pro
cedural, in the implementation of e procurement,
from the improvement of SMEs' access to public pro
curement, cross board competition and innovation,
to the growth of the Single Market. 7 It also allows a
border control of procedure errors and gains of time
within the phases of the procedure, avoiding for in
stance the need for repeated documentation submis
sion. This also means that public procurement be
comes more efficient. This dematerialisation means
the
replacement of paper based procedures with ICT
based communications and processing through
out the procurement chain. E Procurement in
volves the introduction of electronic processes to
support the different phases of a procurement
process publication of tender notices, provision
of tender documents, submission of tenders, eval
8
uation, award, ordering, invoicing and payment.
Besides, e procurement also allows cost reduction:
not only regarding transaction costs for both con
tracting authorities and economic operators, but al
so, and more relevant, concerning the costs relating
to 'the price that the public sector pays to purchase
9
goods, services and works'.
However, e procurement also presents some diffi
culties and constraints.10 There are complex proce
dures regarding some public works that 'may be dif
ficult to reduce to standardised formats and may re
quire human intervention'. 1 Regarding cross border
procedures, economic operators may experience
9 European Commission, 20.04.2012 'A strategy for e-procure-
ment', Communication from the Commission to the European
Parliament, the Council, the European Economic and Social
Committee and the Committee of the Regions, <https://eur-lex
.europa.eu/legal-content/EN/TXT/PDF/?uri-CELEX:52012DC0179
&from-EN>, accessed 12.11.2018. For a more detailed descrip-
tion of the advantages of the e-procurement implementation see
European Commission, Communication of 18.10.2010 concern-
ing the 'Green Paper on expanding the use of e-Procurement in
the EU', SEC(2010) 1214, <https://eur-lex.europa.eu/legal
-contentGA/TXT/?uri-CELEX:52010DC0571>, accessed
9.10.2016. The Directive 2014/24/EU allows contracting authori-
ties to shorten the time limit in procedures, also when using
electronic means.
10 For a different approach of the questions raised by the introduc-
tion of e-procurement, see F Lichbre and S Richetto, 'Framework
agreements, dynamic purchasing systems and public e-procure-
ment', in F Lichbre, R Caranta and S Treumer (ed), Modernising
Public Procurement - The New Directive (DJOF Publishing 2014)
187.
11 European Commission, Communication of 18.10.2010 concern-
ing the 'Green Paper on expanding the use of e-Procurement in
the EU, SEC(2010) 1214, <https://eur-lex.europa.eu/legal-content
GA/TXT/?uri-CELEX:5201 0DC0571 >, accessed 9.10.2016.
EPPPL 112019
some technical difficulties as the platforms are built
within the frame of the national practices and can
12
differ among Members States (MS).
On the other hand, some constraints emerge
from the resistance of contracting authorities re
garding the implementation of the technical tools
due to the dimension of the administrative struc
ture, which implies the formation of personnel, the
acquisition of the instruments supporting the elec
tronic platforms, and budget constraints. Further
more, many contracting authorities are afraid of
technological risks, such as the integration of these
technologies with existing information systems,
and the security and control mechanisms respect
ing the authentication and identification of the ten
ders by means of electronic signatures. And, from
another perspective, the use of electronic means in
that procedure implies huge amounts of national
budget. From economic operators' point of view, es
pecially SMEs, e procurement may pose other dif
ficulties in what respects contracting authorities al
lowing several electronic platforms and there being
a lack of interoperability between them, which may
12 European Commission, Communication of 18.10.2010 concern-
ing the 'Green Paper on expanding the use of e-Procurement in
the EU', SEC(2010) 1214, <https://eur-lex.europa.eu/legal-content/
GA/TXT/?uri-CELEX:52010DC0571 >, accessed 9.10.2016.
13 For more details about this issue, see European Commission,
Communication of 18.10.2010 concerning the 'Green Paper on
expanding the use of e-Procurement in the EU', SEC (2010) 1214,
<https://eur-lex.europa.eu/legal-content/GA/TXT/?uri-CELEX:
52010DC0571>, accessed 9.10.2016.
14 Articles 1.12 and 1.13 of 2004/1 8/EC and articles 1.11 and 1.12
of 2004/17/EC.
15 Article 42.5(b) of 2004/18/EC, and article 48.5(b) of
2004/17/EC.
16 Article 1.6 of 2004/18/EC and 1.5 of 2004/17/EC.
17 European Commission, Communication of 18.10.2010 concern-
ing the 'Green Paper on expanding the use of e-Procurement in
the EU', SEC(2010) 1214, <https://eur-lex.europa.eu/legal-content
GA/TXT/?uri=CELEX:52010DC0571 >, accessed 9.10.2016.
18 Article 1.7 of 2004/18/EC and 1.6 of 2004/17/EC.
19 Recital 12 of 2004/18/EC and recital 20 of 2004/17/EC.
20 European Commission, Communication of 18.10.2010 concern-
ing the 'Green Paper on expanding the use of e-Procurement in
the EU', SEC(2010) 1214, <https://eur-lex.europa.eu/legal-content
GA/TXT/?uri=CELEX:52010DC0571 >, accessed 9.10.2016.
21 Article 36.2, 36.3 and 36.6 of 2004/18/EC and article 44.2 and
44.3 of 2004/17/EC.
22 European Commission, Communication of 18.10.2010 concern-
ing the 'Green Paper on expanding the use of e-Procurement in
the EU', SEC(2010) 1214, <https://eur-lex.europa.eu/legal-content
GA/TXT/?uri=CELEX:52010DC0571 >, accessed 9.10.2016.
23 Article 38.6 of 2004/18/EC and article 45.6 of 2004/17/EC.
Implementation of e-Procurement in Portugal I 45
create another difficulty regarding cross border
13
procedures.
Bearing all of this in mind, the European Commis
sion has taken some important steps towards e pro
curement implementation, the Public Procurement
Directives being the logical follow up legislative mea
sures.
II. The Public Procurement Directives
1. 2004 Directives
The 2004 Directives had already prescribed some leg
islative measures which were observed very closely
in Portugal in our 2oo8 transposition. The Directives
had provisions regarding:
a) Electronic means of communication as 'using
electronic equipment for the processing (including
digital compression) and storage of data which is
transmitted, conveyed and received by wire, by ra
dio, by optical means or by other electromagnetic
4 1
means';
b) e Signatures: it was allowed to require that elec
tronic tenders are accompanied by an advanced elec
tronic signature (article 5 %i of Directive 19 9 9/ 9 3/EC,
which foresaw the advanced electronic signature
15
based on a qualified certificate);
c) Dynamic Purchasing System (DPS): 16 'coin
pletely electronic process for making commonly used
purchases, limited in duration and open throughout
its validity to any economic operator meeting the se
lection criteria, after submitting an indicative ten
17
der';
d) e Auctions: 'a repetitive process involving an
electronic device for the presentation of new prices,
revised downwards, and/or new values concerning
18
certain elements of tenders';
e) e Catalogues: 19 'tool to facilitate public procure
ment, specifically as a modality for participating in
procurements under framework agreements or with
20
in a DPS';
f) e Notification: 21 'Notification should be made
using standard forms but not necessarily using elec
tronic means, but in accelerated procedures, notices
must be sent by telefax or using electronic means. E
Notification allows shortened publication and in
creases the maximum permitted length of the no
22
tices;
g) Electronic access to documents.23
46 1 Implementation of e-Procurement in Portugal
2. Manchester Declaration 2005
After the 2004 Directives, EU Ministers approved the
Manchester Declaration in 2005, on the occasion of
the Ministerial e Government Conference 'Trans
forming Public Services', in Manchester, UK, where
it was set out as a long term objective that by 2010,
'at least 50% of public procurement above the EU
public procurement threshold [would] be carried out
electronically'. However, in 2010, the Commission in
formed that 'The EU average figure [was] estimated
to be less than 50% of total value, other than in Portu
gal, where the mandatory approach result[ed] in near
24
ly loo% use of e Procurement'.
3. 2014 Directives
The 2014 Directives on Public Procurement deep
ened the implementation of e procurement. There is
a chapter dedicated to 'Techniques and instruments
for electronic and aggregated procurement', al
though this chapter does not regulate all the electron
ic features 25 (as abovementioned in 11.1 the 2014 Di
rectives already had some provisions regarding this
issue).
From a quick overview at the 2014 provisions, we
can conclude that there are provisions regarding:
a) Electronic means: 'electronic equipment for the
processing (including digital compression) and stor
age of data which is transmitted, conveyed and re
ceived by wire, by radio, by optical means or by oth
26
er electromagnetic means';
b) Rules of communication: 27 use of electronic
means of communications according to the Direc
tives. Under the 2004 Directives, the use of e commu
nications was 'on par' with the traditional forms of
communications. 28 In 2014, the former became
mandatory and the latter became the exception and
required a justification. 29 Nevertheless, there is room
for 'gold plating', as State Members can go further in
the implementation of electronic means.3 ° Tied up
with electronic communications is the issue of safe
ty and confidentiality of those means regarding the
information carried out through them. It is also re
lated to electronic signatures, already established in
the 19 9 9 / 9 3 /CE Directive and in accordance with
Commission Decision 2011/1 3 o/EU. With this deci
sion, the European Commission wanted to establish
the 'minimum requirements for the cross border pro
EPPPL 112019
cessing of documents signed electronically by com
petent authorities under Directive 2oo6/12 3/EC of the
European Parliament and of the Council on services
in the internal market'. This decision aimed at deep
ening cross border interoperability.
b) Dynamic Purchasing System (DPS): a complete
ly electronic process in accordance with Article 22(1),
(3), (5) and (6);31
c) Electronic
2
auctions: repetitive electronic
3
process;
d) Electronic catalogues: which may become
mandatory 'in connection with certain types of pro
curement'.3 3 E catalogues are a way of presenting
and organising information which can be used by all
economic operators and permit electronic treat
ment;
e) Form and manner of publication of notices: by
34
electronic means 'in accordance with Annex VIII';
f) Electronic availability of procurement docu
35
ments: direct access, free of charge;
g) European Single Procurement Document
(ESPD): to be provided by electronic way only.3 6 The
'ESPD and e Certis play a crucial role in the digital
24 European Commission, Communication of 18.10.2010 concern-
ing the 'Green Paper on expanding the use of e-Procurement in
the EU', SEC(2010) 1214, <https://eur-lex.europa.eu/legal-content/
GA/TXT/?uri=CELEX:52010DC0571 >, accessed 9.10.2016.
25 Criticising the legislative technique, F Lichere and S Richetto,
'Framework agreements, dynamic purchasing systems and public
e-procurement', in F Lichere, RCaranta and S Treumer (ed),
ModernisingPublic Procurement- The New Directive (DJOF
Publishing 2014) 185 ff.
26 Article 2.1 (19) of the Directive 2014/24/EU.
27 Article 22 of the Directive 2014/24/EU.
28 F Lichere and S Richetto, 'Framework agreements, dynamic
purchasing systems and public e-procurement', in F Lichere, R
Caranta and S Treumer (ed), Modernising Public Procurement-
The New Directive (DJOF Publishing 2014) 195.
29 Annex IV of the Directive 2014/24/EU sets out the requirements
related to the instruments/devices complying with the obligation.
Regarding Portugal, see Law 96/2015.
30 Frangois Lichere and Sara Rochetto discuss whether 'Members
States may provide for standards which are higher than those laid
down in a EU Directive only when the directive so expressly
provides; or if they may do so even when they are not expressly
empowered to do so' (F Lichere and S Richetto, 'Framework
agreements, dynamic purchasing systems and public e-procure-
ment', in F Lichere, R Caranta and S Treumer (ed), Modernising
Public Procurement - The New Directive (DJOF Publishing 2014)
199).
31 Article 34 of the Directive 2014/24/EU.
32 Article 35 of the Directive 2014/24/EU.
33 Article 36 of the Directive 2014/24/EU.
34 Articles 51 and 79 of the Directive 2014/24/EU.
35 Article 53 of the Directive 2014/24/EU.
36 Article 59.1, §2 of the Directive 2014/24/EU.
EPPPL 112019
transformation of public procurement. They con
tribute to EU countries' transition to full e procure
ment, significantly reduce administrative burden
and simplify access to cross border tendering oppor
37
tunities'.
Despite the provisions mentioned above, there are
several concretisations of e procurement. Following,
we will focus on the Portuguese experience in e pro
curement and along with some data, we will give no
tice of the several materialisations of e procurement.
III. The Portuguese Experience in
Implementing e-Procurement
1. The Timeline of Implementation
According to the Green Paper on expanding the use
of e procurement in the EU, the EU has not been con
sistently implementing e procurement:
different Member States or regions are moving at
different speeds to embrace the possibilities of
fered by e Procurement. Some Member States
have imposed the use of electronic procurement
3 8
procedures for some or all purchases.
Since November 1st 2009, it has become mandatory
for open public procurement procedures, including
negotiation procedures and competitive dialogue, to
be totally carried out through electronic platforms
37 European Commission, ESPD European Single Procurement
Document, <https://ec.europa.eu/growth/single-market/public
-procurement/e-procurement/espd-en>, accessed 12.11.2018.
See Commission Implementing Regulation (EU) 2016/7 of 5
January 2016 establishing the standard form for the European
Single Procurement Document. E-Certis is an electronic system
'intended to facilitate the exchange of certificates and other
documentary evidence frequently required by contracting author-
ities'. It is a free, online source of information (R Bickerstaff, 'E-
procurement under the new EU procurement Directives' [2014]
Public Procurement Law Review 134, 145). See article 61 of the
Directive 2014/24/EU.
38 European Commission, Communication of 18.10.2010 concern-
ing the 'Green Paper on expanding the use of e-Procurement in
the EU', SEC(2010) 1214, <https://eur-lex.europa.eu/legal-content/
GA/TXT/?uri-CELEX:52010DC0571 >, accessed 9.10.2016.
39 INC[ Report of 27.01.2011 regarding Contrata ao Pu1blica em
Portugal Relat6rio sintese 2010, <http://www.base.gov.pt/
mediaRep/inci/files/base docs/RelContr Publ 2010.pdf>, 4, ac-
cessed 9.10.2016.
40 This is also one of the goals of European Commission, Communi-
cation of 26.6.2013 concerning End-to-End E-Procurement
COM/2013/0453 final, <http://eur-lex.europa.eu/legal-content/
EN/ALL/?uri-CELEX:52013DC0453>, accessed 9.10.201 6; R
Implementation of e-Procurement in Portugal I 47
from the notice to the award. 39 Therefore, the 'end
to end e procurement' has been mandatory in Portu
40
gal.
Portugal has been a leader in this process, as we
can verify from the analysis of consistent data pro
vided by the national authorities: while in 2010 the
EU average use of electronic means was about 5 % ,
Portugal registered almost oo%.41
In subsequent years, Portuguese authorities pro
duced an annual report (the last one available dating
from 2018) where several operational indicators can
be assessed.
But before displaying those data, let us have a look
at the framework features:
a) Portugal has chosen to apply the freedom of en
terprise regarding platforms, which means that we
have several electronic platforms and, therefore, a
private electronic platform market in a decentralised
42
model;
b) Portugal has created a website called Portal
Base 43 where all information concerning public con
tracts is gathered and publicised, such as the no
tices on the opening of procurement procedures and
subsequent ones, procedure and contract perfor
mances, orders and deliberations, and concluded con
tracts under direct awards, besides those under open
procedures, restricted procedures, negotiation and
competitive dialogue procedures; contract amend
ments amounting to more than 15 % of the contract
44
value, and accessory sanctions imposed;
Bickerstaff, 'E-procurement under the new EU procurement
Directives' [2014] Public Procurement Law Review 134, 136.
41 Above thresholds. European Commission, Communication of
18.10.2010 concerning the 'Green Paper on expanding the use of
e-Procurement in the EU', SEC(2010) 1214, <https://eur-lex
.europa.eu/legal-contentGA/TXT/?uri-CELEX:52010DC0571 >, 9,
accessed 9.10.2016; INC[ Report of 27.01.2011 regarding Con-
trata ao Pu1blica em Portugal Relat6rio sintese 2010, <http://
www.base.gov.pt/mediaRep/inci/files/base docs/RelContrPubl
201 0.pdf>, accessed 9.10.2016.
42 Underlining that this model is 'more competitive but still regulat-
ed' and that 'it is predictable that, in the Portuguese case, the
presence of eight platforms [at the time of the paper] raises com-
petition and encourages the outgrowth of more proficient solu-
tions', see A Arantes and A A Costa, 'Over Time Public E-Procure-
ment Impacts: The Portuguese Case' (2014) 7 International Busi-
ness Research 119, 121.
43 <http://www.base.gov.pt/Base/pt/Homepage>.
44 See <http://www.base.gov.pt/Base/en/PortalAWhatWePublish>.
Regulation no. 57/2018, of 26 February, establishes the rules
concerning the functioning of Portal Base. Its administration is
one of the powers of IMPIC, 1P,and the gathering and publicising
of information are two of its main goals (<https://dre.pt/
application/conteudo/ 114766031>).
48 I Implementation of e-Procurement in Portugal
c) The IMPIC is the administrative body that li
censes, monitors and inspects electronic procure
45
ment platforms;
d) All electronic platforms management compa
nies must be certified by Gabinete Nacional de Segu
ranga (GNS). Presently, Portugal has five platforms:
Acingov, Academia de Informdtica, Lda; 46 AnoGov,
47
Ano Sistemas de Informdtica e Servigos, Lda;
Compraspt, Miroma Servigos e Gestao de Partici
pa 6es, Lda;48 Saphetygov Level Trusted Services,
S.A.; 4 9 and Vortal Comercio Eletr6nico, Consulta
doria e Multimedia, S.A. 50 , 51 , 52 All of them must be
interoperable with Portal Base.
e) Regarding the provisions of the 2004 Directives,
Portugal has a Public Contracts Code in which the
Portuguese legislator has transposed those Directives
and established a regime for administrative contracts
(whether or not public). Assuming the 2004 Direc
tives' provisions listed above, our Public Contracts
Code has established the following:
i) Rules of communication and electronic availabil
ity of procurement documents: all notices must be
publicised both in Portal Base and in e INCM, they
must be communicated through electronic means,
and the procurement documents must be available
electronically
53 (articles 127, 130, 131, 197, 198, 208,
242 ... ) ;
ii) Dynamic Purchasing System (DPS): 54 a totally
electronic system aimed at the purchase of goods and
services (only those with standardised features); pro
cedure documents must be fully available on the elec
tronic platform used until the system closes, and free
45 See article 7 of Law 96/2015, of 17 August. The IMPIC launched
an auditing action regarding all e-procurement platforms and had
already applied about 70 infraction proceedings by June 2016
(<http://www.impic.pt/impic/assets/misc/pdf/ImpicComunicado
_plataformas jul_2016.pdf>).
46 <https://www.acingov.pt/acingovprod/2/>.
47 <http://www.anogov.com/>.
48 <http://www2.compraspt.com/>.
49 <https://www.saphety.com/pt/solutions/public-procurement>.
50 <http://pt.vortal.biz/gov-setor-publico/>.
51 These are the five electronic platforms certified and mentioned in
Portal Base < http://www.base.gov.pt/Base/pt/
PlataformasEletronicas/EntidadesCertificadas> accessed
17.11.2018. Each one has a management company which needs
permission and certification to operate.
52 One of the Documents produced by the Expert Group on e-
Procurement that the European Commission has set up, and one
of its Reports, briefly describe the Portuguese experience Certifi-
cation of e-Tendering Platforms, <https://ec.europa.eu/growth/
single-market/public-procurement/e-procurement/transition-en>,
accessed 19.10.2018.
EPPPL 112019
of charge (article 240, 3); the existence of a simpli
fied notice in electronic sites is mandatory (article
242, 2);
iii) Electronic auctions :55 an interactive electronic
process used when contracting authorities want to
purchase goods or services, allowing tenderers to im
prove their tender and ending with an automatic eval
uation;
iv) Electronic catalogues: the Public Contracts
Code did not have, at this time, specific dispositions
in this regard;
v) e Signatures: contract signatures must be elec
56
tronic;
f) Regarding the presentation of candidates and
tenders in electronic platforms, before article 22 of
Directive 2014/24/EU, Decree Law 143 A/2oo8 has es
tablished the following principles: 57 i) Freedom of
choice regarding electronic platforms by the contract
ing authorities (article 3); ii) General availability of
electronic platforms must be granted, and they can
not constitute a restriction factor as regards user ac
cess to respective contract formation procedures (ar
ticle 4); iii) Non discrimination and open access to
electronic platforms (article 5); iv) Interoperability
and compatibility within platforms and systems (ar
ticle 6); v) Security and data integrity (article 7); vi)
Encryption and document classification (article 8);
vii) Wide accessibility to procedure information (ar
ticle lo), which includes contract notices, 5s procure
ment documents, 59 clarifications, errors and omis
sions in procurement documents, 60 tenders, habilita
tion documents, etc.; viii) Maximum security level re
53 In 2017, Regulation no. 371/2017, of 14 December, established
the contract notice model in Portugal.
54 Articles 237-244 of the Public Contracts Code (before the 2017
revision).
55 Articles 140-145 of the Public Contracts Code (before the 2017
revision).
56 Article 94, 1 of the Public Contracts Code (before the 2017
revision).
57 Articles 62, 4 and 170, 3 of the Public Contracts Code foresee
that the presentation and reception of both candidates and ten-
ders must be ruled in a specific law. This Decree-law transposed
article 42 of the 2004 Directives. Regulation no. 701 -G/2008
developed the features of electronic platforms (before the 2017
revision).
58 Articles 130, 170, 196, 224 and 245 of the Public Contracts Code
(before the 2017 revision).
59 Articles 115, 133, 166, 189, 217 and 240 of the Public Contracts
Code (before the 2017 revision).
60 Articles 50 and 61 of the Public Contracts Code (before the 2017
revision).
EPPPL 112019
quired for electronic signatures to be ensured by the
highest technological security system available (arti
cle 11); ix) Fulfillment of procedure rules regarding
the secrecy of tenders (article 12.), as well as the pri
vacy of candidates and tenderers (article 12); x) Main
tenance of procedure and document registration (ar
ticles 15 and 16);
g) Since 2016, the ESPD is mandatory for public
procurement procedures above thresholds in accor
dance with Commission Regulation (EU) 2016/7.61
The electronic form of ESPD can be found at <https ://
ec.europa.eu/growth/tools databases/espd/filter
?lang=pt>. In 2017, the European Commission pub
lished a Report analysing the 'practical application
of the European Single Procurement Document
(ESPD)'. 62 The European Commission 'services have
developed an electronic version of the ESPD ('the
eESPD')' and have displayed a set of measures to sup
port MS in the ESPD implementation: funding, im
plementing workshops, and technical assistance. MS
were asked to report on the implementation, and an
online survey was made. Portugal was one of the MS
to implement the use of ESPD only Austria, Bel
gium, Cyprus, Estonia, Lithuania, and Sweden had
still not implemented by 31t December 2016. The Re
port concluded that 'since Member States had just
started to implement the ESPD a qualitative assess
ment can hardly be made; indeed, although Member
61 European Commission Regulation of 5 January 2016 establishing
the standard form for the European Single Procurement Docu-
ment, uJ L 3, 6.1.2016, 16-34.
62 European Commission Report from the Commission to the
European Parliament and the Council from 17.05.2017 concern-
ing on the review of the practical application of the European
Single Procurement Document (ESPD), COM (2017) 242 final,
<https://eur-lex.europa.eu/legal-content/EN/TXT/?uri-CELEX:
52017DC0242>, accessed 12.11.201 8>
63 European Commission Report from the Commission to the
European Parliament and the Council from 17.05.2017 concern-
ing on the review of the practical application of the European
Single Procurement Document (ESPD), COM (2017) 242 final,
<https://eur-lex.europa.eu/legal-content/EN/TXT/?uri-CELEX:
52017DC0242>, accessed 12.11.201 8.
64 European Commission Report from the Commission to the
European Parliament and the Council from 17.05.2017 concern-
ing on the review of the practical application of the European
Single Procurement Document (ESPD), COM (2017) 242 final,
<https://eur-lex.europa.eu/legal-content/EN/TXT/?uri-CELEX:
52017DC0242>, accessed 12.11.201 8.
65 Data from the INC[ Report of 27.01.2011 regarding Contrata ao
Pu1blica em Portugal Relat6rio sintese 2010, <http://www.base
.gov.pt/mediaRep/inci/files/base docs/RelContr Publ 2010.pdf>,
accessed 12.11.2018.
66 INC[, Report from December2012 regarding Contrata ao Pu1blica
em Portugal 2011, <http://www.base.gov.pt/mediaRep/inci/files/
base docs/RelContrPub_2011 .pdf>, 19, accessed 12.11.2018.
Implementation of e-Procurement in Portugal I 49
States acknowledge that the integration into their na
tional e procurement system would provide greater
benefits to all stakeholders, such integration requires
some time to be completed'. By the time of the Re
port, 61% of MS '[did] not intend to use the ESPD for
below the EU threshold procedures or for concession
contracts'. 63 Portugal is one of the MS which intends
to use ESPD as a way to deepen digitalisation in pub
lic procurement. 64 However, when asked if the data
could be accessed directly to database by contracting
authorities, Portugal has not yet made it possible.
2. Available Data from 2010 to 2017
A) In 2010, from a total of 79 739 public procurement
procedures, 45 013 were carried out through e pro
curement, ascending to an amount of almost 11 bil
lion Euros. Despite e procurement being non manda
tory for direct awards, in the year of 2010, 38 563 di
rect award procedures were carried out through elec
tronic platforms. Yet, these direct awards only repre
sented 29% of all procedures of this kind. Overall,
only 16% of the public procurement procedures rep
resented open procedures, restricted procedures, ne
gotiation and competitive dialogue procedures, the
remaining 84% representing direct awards. The re
lation between the value of signed contracts in result
of e procurement and the whole public procurement
was 75 % (Electronic public procurement index in
Portugal EPPIP).
The final data for 2010 in this regard indicated that
the Manchester index was 91%.65
B) In 2011, EPPIP decreased and e procurement
stayed at 62% within all public procurement. There
were 122 763 public procurement procedures, 16 487
of which represented e procurement (about 11.8%).
Yet, considering contract value, e procurement con
tract value achieved 2 937 950 218 E (about 38.14%).66
In what concerns the Manchester Index, we
achieved 92%.
According to the National Report, though, that per
centage rises up to 92% if we only consider e pro
curement above the thresholds. There were 12 454
contracts reported using electronic platforms, which
represents lo.6%.
The 2011 National Report on Public Procurement
refers economic retraction as a key factor for all the
values gathered concerning public procurement, in
cluding the decrease in the number of public con
50 I Implementation of e-Procurement in Portugal
tracts concluded. But the same Report acknowledges
that
in 2011, a significant number of purchases of goods
and services was reported with contract values be
neath 5 000 tI: 70 563 public contracts (...). This is
the result of the widespread use of e procurement
by contracting authorities in direct awards and
light regime direct awards.
This Report also shows us another crucial factor re
garding e procurement: the number of electronic
platforms used by contracting authorities (as Portu
gal did not choose to have one single platform): from
3 609 authorities, about 84.5 % use only one platform,
15.2% use two and only 13 authorities use three elec
tronic platforms. On the other hand, in 2011, 48 136
economic operators were registered, 65.7% of them
67
in at least two of the electronic platforms.
C) In 2012, 24% of public procurement ran (34 136
out of lo8 267) through electronic means. But if we
look at the contract values, the percentage rises up to
77.4 % due to e procurement being mandatory to all
open procedures, restricted procedures, negotiation
and competitive dialogue procedures. But there is
other important data: 27 055 direct awards ran
through electronic platforms (out of 135 322), which
%
means 20% of all direct awards and 43.4 of con
tract value.
During 2012, there were two main electronic plat
forms Gatewit and Vortal , which were responsi
ble for 76% of all public contracts made.
EPPIP rose up to 77 % and Manchester Index was
89%. Although this index decreased 2%, Portugal
was still far ahead in complying with the EU goal.68
D) In 2013, Portal Base registered 175 392 public
procurement procedures and 157 775 public con
tracts concluded (regardless of the year of the begin
ning of the public procurement procedure).
22.7% of public procurement initiated in 2013 was
e procurement 39 776 procedures yet, it repre
sented 70% of contract value. 69 EPPIP was 70%, but
the method of determination was changed when
compared to the years 201o and 2011. While the for
mer method, in a time where the use of electronic
platforms was not so widely spread, considered all
procedures already opened even in past years ,
and did not consider the procedures not yet fin
ished,7 ° the new method considered the number of
procedures initiated in 2013 instead of the number
of contracts concluded.
EPPPL 112019
Concerning the distribution of the platform mar
ket, 76% was ensured by 3 platforms (Vortal, Gate
wit and Saphetygov), whereas in 2012 that same rep
resentation was assured by only 2 platforms, the dif
ference between the first and the second having de
creased from 12% to 2%.
It is interesting to look at the contract values of
that distribution, presented in Figures 1 and 2 (see
71
Appendix).
E) In 2014, Portal Base registered 226 243 public
procurement procedures and 399 378 public con
tracts concluded (regardless of the year of the begin
ning of the public procurement procedure). The per
centage to run through registered electronic plat
forms was a bit lower (20.5%), but if the indicator is
the value of public procurement instead, the percent
age is higher: 6o.7% of the base price of all proce
dures begun in 2014.72 There was a decrease in the
internal EPPIP 61%; yet, still clearly above the Eu
ropean Union's Green book.
When analysing the distribution of procedures
among the existing Portuguese electronic platforms,
the chart in Figure 3 is significant (see Appendix).
This indicates that the platform market has
evolved to a more distributed design.
F) In 2015, Portal Base registered 530 336 public
procurement procedures and 296 787 public con
tracts concluded (regardless of the year of the begin
ning of the public procurement procedure). The per
centage to run through registered electronic plat
forms was even lower than 2014 (14.3%) due to the
67 ING, Report from December 2012 regarding Contrata ao Publica
em Portugal 2011, <http://www.base.gov.pt/mediaRep/inci/files/
base docs/RelContr Pub 2011 .pdf>, accessed 12.11.2018.
68 ING, Report from March 2014 regarding Contrata ao Publica em
Portugal 2012, <http://www.inci.pt/Portugues/inci/
Estudos RelatoriosSectoriais/EstudosRelatrios%2oSectoriais/Rel
AnualContratosPubl icos 2012.pdf>, accessed 12.11.2018.
69 ING, Report from January 2015 concerning Contrata ao Publica
em Portugal 2013, <http://www.base.gov.pt/mediaRep/inci/files/base
docs/RelContratosPubl icos_2013.pdf>, 12, accessed 12.11.2018.
70 ING, Report from January 2015 concerning Contrata ao Publica
em Portugal 2013, <http://www.base.gov.pt/mediaRep/inci/files/
base docs/RelContratosPublicos_2013.pdf>, 12, footnote 10,
accessed 12.11.2018. This remainder remains for the following
years.
71 ING, Report from January 2015 concerning Contrata ao Publica
em Portugal 2013, <http://www.base.gov.pt/mediaRep/inci/files/base
docs/RelContratosPubl icos_2013.pdf>, 88, accessed 12.11.2018.
72 IMPIC, Report from October 2016 regarding Contrata ao Publica
e Portugal 2014, <http://www.impic.pt/impic/assets/misc/pdf/
RelContratosPublicos 2014.pdf>, 10, accessed 12.11.201 8. Also,
bear in mind that only open public procedures must be carried
out through electronic platforms.
EPPPL 112019
non mandatory use of electronic platforms in direct
awards. However, the internal EPPIP increased to
67% due to the value of the contracts awarded.
2015 was a year of sustainable use of electronic
platforms, concluding 9 3 % of public contracts above
European thresholds.
When analysing the distribution of procedures
among the existing Portuguese electronic platforms,
the chart in Figure 4 is significant (see Appendix).
The IMPIC Report concluded that the electronic
platform market was still mainly controlled by Gate
wit and Vortal, which shared 73.5 % of the total num
7 4
ber of contracts and 67.7% of contract value.
G) In 2o16, 625 403 public procurement proce
dures and 432 450 public contracts concluded were
registered (regardless of the year of the beginning of
the public procurement procedure). Again, the per
centage to run through registered electronic plat
forms was lower than 2014, but a bit higher than 2015
(16%), due to the still non mandatory use of electron
ic platforms in direct awards. However, the internal
EPPIP also decreased to 62% due to the money val
ue of the contracts awarded (see Figure 9 in the Ap
pendix).
H) Lastly, in 2017, the latest Report available,
demonstrates that ioo 355 out of 569 482 procedures
73 IMPIC, Report from October 2016 regarding Contrata ao Publica
em Portugal 2015, <http://www.impic.pt/impic/assets/misc/pdf/
RelContratosPublicos_2015.pdf>, 12, accessed 12.11.2018.
74 IMPIC, Report from October 2016 regarding Contrata ao Publica
em Portugal 2015, <http://www.impic.pt/impic/assets/misc/pdf/
RelContratosPubl icos_2015.pdf>, 104, accessed 12.11.2018.
75 IMPIC, Report from November 2017 regarding Contrata ao
Publica em Portugal 2016, <http://www.impic.pt/impic/assets/
misc/pdf/RelContratosPublicos_2016.pdf>, accessed 12.11.2018.
76 IMPIC, Report from September 2018 regarding Contrata ao
Publica em Portugal 2017, <http://www.impic.pt/impic/assets/
misc/relatorios-dadosestatisticos/Relatorio Anual
_ContratosPublicos_201 7.pdf>, 13, accessed 12.11.2018.
77 IMPIC, Report from September 2018 regarding Contrata ao
Publica em Portugal 2017, <http://www.impic.pt/impic/assets/
misc/relatorios-dadosestatisticos/Relatorio Anual
_ContratosPublicos_201 7.pdf>, 13, accessed 12.11.2018.
78 As the EPPIP index, the Manchester index depends on the use of
electronic platforms by contracting authorities in direct awards.
79 IMPIC, Report from September 2018 regarding Contrata ao
Publica em Portugal 2017, <http://www.impic.pt/impic/assets/
misc/relatorios-dadosestatisticos/Relatorio Anual
_ContratosPubl icos_201 7.pdf>, 91 accessed 12.12.2018).
Implementation of e-Procurement in Portugal I 51
ran through electronic platforms but it represented
77.7 % of value (see Figures 5 and 6 in the Appendix).
Hence, the EPPIP rose up to 78% and the Man
chester Index was almost lOO% (98%).
The EPPIP evolution can be seen in Figure 7 (see
76
Appendix).
The Manchester index was 98%, and we can see
that Portugal continues way ahead in the EU goal.
The evolution of the Manchester Index is presented
77
in Figure 8 (see Appendix).
Both indexes depend on contracting authorities'
use of electronic platforms in what respects direct
awards. 7
Platforms VortalGOV, acinGov and bizGov share
87.4% of all public contracts reported to Portal Base
and 82.9% of contracts' money value (see Figures lo
and 11 in the Appendix).79
IV. Partial Conclusion
Portugal has been implementing the electronic pro
cedure regarding public procurement for quite some
time. It is a trend in Portuguese Law all over admin
istrative activity since the general administrative
rules to specific administrative rules concerning en
vironmental and urban law, for instance.
Since 2010 there are reliable data assembled by the
regulatory body which allow us to say that Portugal
has been complying with the Manchester Index at
least since then.
In order to implement e procurement, the Por
tuguese Government has chosen to have an electron
ic platform market. Although it is a small market, it
can be stressed that between six and seven electron
ic platform providers have been holding on in the
market.
The data presented have been assembled in a par
ticular framework where e procurement was not
mandatory regarding direct awards.
Part II of this paper intends to describe the cur
rent legal regime concerning these issues, although,
for the time being, there are no available data beyond
2017. So, it will be difficult to assess the evolution of
e procurement in Portugal in the last year.
52 I Implementation of e-Procurement in Portugal - Appendix EPPPL 112019

Implementation of e-Procurement in Portugal -

Appendix - Figures
Contract Values (M 1) Number of Contracts

0,2%

Figuresi and 2
Source:INCI,Reportfrom January 2015 concerning ContrataqdoPublica em Portugal2013, <http://www.base
.gov.pt/mediaRep/inci/files/base docs/RelContratosPublicos 2013 .pdf>, 88, accessed 12.11.2018.

1= coy
11 1:e~a -6

LI. o~
7ot rn'

I h ru-nA - n -o~r -m El,1 d

Figures3 and 4: Distributionof procedures in Portugueseelectronic platforms in 2014 and 2015.

Source:portalBASE (December2015 and March 2o16).
EPPPL 112019 Implementation of e-Procurement in Portugal - Appendix 1 53

Number of Contracts Contract Vaiues

. t E$-tr- N r, -I r br -u'h e m F nli,,l. s L

, D-

Figures5 and 6
Source: portalBASE (March2018).

Figure 7: EPPIPevolution (The dark line is the value of the Green Paper:5%). Figure 8: Evolution of the
Manchester Index (The dark line is the Manchester Index: 50%).
Source:IMPIC,Reportfrom September 2o18 regarding ContratagdoPublica em Portugal2017,
<http://www.impic.pt/impic/assets/misc/relatoriosdados estatisticos/RelatorioAnual ContratosPubli
cos 2o17 .pdf>, 13, accessed 12.11.2018.
54 1 Implementation of e-Procurement in Portugal - Appendix EPPPL 112019

@S, h9e1y
L-le T-u e Sep A

IANO tmsenum;ae~ od.

I

;A~ni ud S Ld

14! Mw,
r Sa,, -s G- . deatth bs
15% Ld.

21%

Figure9: Distributionof procedures in Portuguese electronicplat

forms in 2016.
Source:IMPIC,Reportfrom October 2016 regardingContratasdo
Publica em Portugal2015, <http:,I/www.impic.ptimpicassets/misc/
pdf/RelContratosPublicos 2015 .pdf>, 91, accessed 12.11.2018.

Number of Contracts Contract Values (M C)

0.5%

16,6%

93

>ort~G,: atnG'~ . ~noIZo~ ntm~ EL C PC ~m E,

,,L-Conpw4P

Figureslo and 11
Source:IMPIC,Reportfrom September 2018 regarding ContrataqdoPublica em Portugal2017,
<http://www.impic.pt/impic/assets/misc/relatoriosdados estatisticos/RelatorioAnual ContratosPubli
cos 2017 .pdf>, 91 accessed 12.12.2018.