Questions and Answers on recent amendments and clarifications to Law No. 1-A/2020 and Decree-Law No. 10-A/2020, with respect to some measures taken in the context of Administrative Litigation and Public Procurement.
It was published in Diário da República yesterday, Law No. 4-A/2020, through which the Assembly of the Republic introduced a few amendments to Law No. 1-A/2020 of March 19th and Decree-Law No. 10-A/2020 of March 13th, which had approved exceptional and temporary measures to respond to the epidemiological situation caused by coronavirus SARS-CoV-2 and COVID-19 disease.
This Law clarifies and details the regime of suspension of deadlines (procedural and procedural) set out in Article 7 of Law No. 1-A/2000, determining the suspension of courts procedural deadlines, for the period in which the state of emergency prevails, and no longer referring to the application of the judicial holiday regime. On the other hand, this Law specifies certain rules on the progress of urgent proceedings and regarding the field of public procurement.
Although the Law comes into effect on April 7th, the day after of its publication, with retroactive effect to the date on which Decree-Law No. 10-A/2020 of March 13th came into effect - in this case, March 9th. However, the rules on urgent proceedings, which we will consider below, only come into effect on April 7th.
We answered a few questions.
I want to appeal of a judgment of an administrative court and the deadline ends on April 15th. Does the appeal period remain suspended?
Yes, the general rule, except for urgent proceedings, is the suspension of procedural deadlines.
However, the Law has specified that the conduct of proceedings and the practice of face-to-face and non-face-to-face acts may occur when all parties believe they have conditions to ensure their practice through computer platforms that allow these acts to be performed electronically or through appropriate means of remote communication, such as teleconferencing, video calling or other equivalent.
I'm awaiting sentencing in a non-urgent proceeding. Does this suspension prevent the court from making the final decision in the meantime?
No. Final decisions may be given in cases where the court considers that further procedural steps are not necessary.
Does the suspension of deadlines apply to urgent proceedings?
No. In an amendment to what was stated in Law No. 1-A/2020, the Law No. 4-A/2020, provided that urgent proceedings continue to be processed, without suspension or interruption of deadlines, acts or any procedural steps. Given this change of regime, these effects will only occur on the day following the publication of this Law, counting from that date all the deadlines for performing procedural acts that have been notified in the meantime to the parties and that were considered to be covered by the suspension previously determined.
The Law No. 4-A/2020 further specifies that in procedural acts requiring the physical presence of the parties or representatives, the practice of acts takes place through appropriate means of distance communication, such as teleconferencing, video calling or other equivalent.
Does the non-suspension rule of urgent proceedings have any exceptions?
Yes, when it is neither possible nor appropriate to ensure the practice of acts or procedural steps through those means of communication, the regime of suspension of deadlines that functions as a general rule also applies to these proceedings.
And do non-procedural deadlines, such as limitation or dismissal periods, remain suspended?
Yes, the rule which determines that the limitation and dismissal periods for all types of lawsuits and proceedings running in courts are suspended, including the deadline for filing an action, has not been changed.
In the specific case of public procurement litigation proceedings does the suspension of time limits apply?
No, the suspension of deadlines does not apply to the public procurement litigation provided for in the Procedural Code of Administrative Courts. Regarding notifications for the practice of procedural acts that have been made to the parties in the meantime, the same counting rules explained above shall apply because it qualifies as an urgent proceeding.
Are the deadlines for administrative procedures also suspended?
Yes, but only in relation to the practice of acts carried by private individuals, i.e. the procedure is not suspended, but private individuals enjoy the suspension of deadlines in relation to the acts they are to perform in the procedure.
If there is a deadline for submitting a tender in a competitive public procurement procedure, is that period suspended as well?
No, the suspension of the administrative deadlines in question here does not apply to the procedural deadlines contained in the Public Contracts Code ("PCC"), as expressly stated in the Law No. 4-A/2020.
But did the suspension rule resulting from the original wording of Law 10-A/2020 not provide for the suspension of all deadlines in administrative procedures, namely in public procurement procedures?
Yes, the Law No. 4-A/2020 assumes that such suspension has taken hold, nevertheless it does not intend to extend it. Thus, and it seems to us that in order to protect those who may have counted on the deadline suspension, the new law determines that the procedural deadlines provided for in the PCC are considered suspended since the 9th of March resuming their count on the day after the publication of this law.
Regarding other rules in the field of public procurement, does this law bring anything new?
Yes, with regard to contracts covered by Article 2 of Decree-Law No. 10-A/2020, it is specified that the qualification documents may be dispensed with, including for the purpose of making payments, without prejudice to the contracting authority being able to request them at any time. Also, regarding these contracts, deposits may not be required by the contracting authority, regardless of the contractual price.
Does the suspension of deadlines apply for an indefinite period?
Yes, the regime of suspension of deadlines referred to here applies until the termination of the ongoing exceptional situation, to be determined by decree-law stating the end of the exceptional situation.