AMENDMENT TO THE PUBLIC CONTRACTS CODE

Decree-Law no. 177/2026 of 4 September was published, introducing a significant revision of the Public Contracts Code (CCP) approved by Decree-Law no. 18/2008 of 29 January, with the objective of simplifying, clarifying and updating the public procurement regime in Portugal.

The amendments introduced have an impact on both contracting authorities and economic operators, with particular emphasis on the introduction of new rules regarding digitalisation and artificial intelligence, the adoption of a new concept of estimated contract value, the reduction of bureaucratic burden, the simplification of contract formation procedures and the substantial increase of thresholds for recourse to prior consultation and direct award.

The structure of the CCP has also been reorganised and several regimes have been reformulated, with a view to providing greater clarity and coherence in the practical application of public procurement rules.

The new regime shall enter into force on 1 October 2026 and shall apply to formation procedures initiated as from that date and to contracts concluded pursuant thereto. Exceptionally, the regime governing objective modifications and dispute resolution shall apply to ongoing procedures and contracts under execution.

Key Amendments

Pre-Contractual Phase:

• New Concept of “Estimated Contract Value” – The CCP replaces the former concept of “contract value” (“maximum value of the economic benefit that may be obtained by the successful tenderer”) with the new concept of estimated contract value (“estimated price to be paid by the contracting authority”). This amendment is relevant for the purposes of procedure selection and determination of the competent body to authorise the expenditure.
   
• Increase of Thresholds for Procedure Selection – One of the most significant amendments is the substantial increase of thresholds for recourse to direct award and prior consultation:

• Non-Award Due to Absence of Satisfactory Tenders – Contracting authorities may now establish a minimum overall score in the procedure programme or invitation, declining to make an award where no tender reaches that threshold.
   
• Design and Construction – The CCP now expressly regulates this contract type, establishing that: (i) it is not subject to any special adoption condition; (ii) the specifications must include a preliminary programme and breakdown of amounts by phase; (iii) execution milestones may be provided for payment purposes; and (iv) specific rules shall apply to complementary works.
   
• Unsolicited Proposals – The possibility for economic operators to submit a technical study to contracting authorities with a view to the execution of a public contract is now formalised. Where the contracting authority considers the proposal suitable, it may use the technical study in the preparation of the procedure documents, reimbursing the economic operator if its tender is not awarded.
   
• Open Tender Flexibility Regime – For contracts below European thresholds, the contracting authority may disapply, adapt or include rules and formalities in the open tender procedure, provided that it complies with the general principles of public procurement and the objective is to promote simplification, efficiency or expediency.
   
• Tacit Tender Declaration – The commitment declaration set out in Annex I to the CCP is abolished. Upon submission of the tender, the economic operator is presumed to have taken notice of the procedure documents and confirms the absence of any impediment.
   
• Adjustments to the Grounds for Exclusion Regime – A new ground for exclusion is added for strong indications of acts or agreements distorting competition. Conversely, participation by operators with outstanding debts to Social Security or the Tax Authority is now permitted.
   
• New Rules Concerning the Evaluation Committee – In addition to the revocation of the declaration corresponding to Annex XIII, the scope of powers delegable to the committee is expanded, including the power to rectify procedure documents and decide on errors or omissions.
   

Contract Execution Phase:

• Subcontracting – Deemed approval is now provided for where the contracting authority fails to respond within 30 days to the contractor’s proposal.
   
• Alternative Dispute Resolution – Arbitration may no longer be imposed as a condition of participation in the procedure and the concept of technical conciliation committees is reinstated, comprising experts appointed by the parties, with the purpose of preventing or resolving contractual disputes amicably.
   

For further information on Decree-Law No. 177/2026, please refer here.