The European Commission approved on October 30th four Delegated Regulations that establish the new thresholds regarding the amounts of the contracts that may be executed within a tender procedure without international publicity, i.e., without being published in the Official Journal of the European Union.

The said Regulations are the following:

(i). Delegated Regulation (EU) 2019/1827 of the Commission, of October 30th, 2019, which alters Directive 2014/23/EU of the European Parliament and of the Council regarding the thresholds for public awards;

(ii). Delegated Regulation (EU) 2019/1828 of the Commission, of October 30th, 2019, which alters Directive 2014/24/EU of the European Parliament and of the Council regarding the thresholds for public supply contracts, public services contracts and public work contracting agreements, as well as to design contests;

(iii). Delegated Regulation (EU) 2019/1829 of the Commission, of October 30th, 2019, which alters Directive 2014/25/EU of the European Parliament and of the Council regarding the thresholds for supply contracts, services contracts and contracting agreements, as well as to the design contests signed by entities operating in the water, energy, transports and postal services sectors;

(iv). Delegated Regulation (EU) 2019/1830 of the Commission, of October 30th, 2019, which alters Directive 2009/81/CE of the European Parliament and of the Council regarding the thresholds for supply contracts, services contracts and contracting agreements signed by awarding entities within defence and security domains.

These new thresholds enter into force in January 1st, 2020 and are, from that date onwards, the following:

  1. Concession contracts for public services and public works - 5 350 000 Euros.
  2. Public contracts for supply, services and public works contracting agreements and subsidised contracts:
    1. Public works contracting agreements - 5 350 000 Euros;
    2. Public supply and services contracts awarded by the State and awards for conception works - 139 000 Euros (when the public supply and services contracts are awarded by awarding entities operating in the defence domain, this threshold only applies to the contracts that have as object the products mentioned in Annex III of the Directive);
    3. Public supply and services contracts awarded by the awarding entities in general and tenders for design contests - 214 000 Euros (when the public supply contracts are awarded by entities awarding entities operating in the defence domain, this threshold only applies to the contracts that have as object the products mentioned in Annex III of the Directive);
    4. Subsidised contracts:
      1. d).1 works contracting agreements subsidised directly in more than 50% by awarding entities that involve activities of civil engineering (confer Annex II of the Directive) or construction works of hospitals, sports, entertaining and leisure facilities, educational establishments, universities and building for administrative use - 5 350 000 Euros;
      2. d).2 services contracts subsidised directly in more than 50% by awarding entities when related to the contracting works agreement above mentioned - 214 000 Euros.
  3. Public supply contracts, services contracts and public works contracting agreements and design contests signed by entities operating in the water, energy, transports and postal services sectors:
    1. Supply of goods contracts, provision of services contracts and concession/conception tenders - 428 000 Euros;
    2. Public works contracting agreements - 5 350 000 Euros.
  4. Public supply contracts, services contracts and public works contracting agreements signed by awarding entities in the defence and security domains:
    1. Supply of goods contracts and provision of services contracts - 428 000 Euros;
    2. Public works contracting agreements - 5 350 000 Euros.

Regarding this matter of community thresholds, we would like to highlight the following summary notes:

  1. Considering the legal form adopted for the legislation under analysis – the community regulation – the new thresholds are directly applicable in the legal framework of the Member States without the need of adopting any additional provision for its reception in the internal framework;
  2. On the other hand, and considering that in Portugal the public contracting procedures begin with the decision of contracting (cf. no. 1 of article 36 of the Portuguese Public Contracts Code), the new thresholds are only applicable to the procedures that will commence as of January 1st 2020;
  3. It shall also be highlighted that in case a specific contract is not directly subject to the provisions foreseen in the Directives (due to the fact that its value is inferior to the mentioned thresholds), such fact does not mean that the said contract is not subject to a set of demands and principles (also of community nature), such as i) the obligation of assuring an adequate publicity of the decision to contract (in national journals, for example), ii) the obligation of ensuring equal access to the economic operators, iii) transparency in the award, iv) the strict observation of rules previously established, among others;
  4. In the particular case of the Portuguese legal framework, the legislation establishes that it shall always be adopted competitive procedures (even if the amount of the contract is below the community threshold);
  5. At last, and in what concerns procedures of direct awarding and of prior consultation, these already have specific thresholds (substantially inferior to the thresholds that result from the community provisions), which are expressly fixed in the Portuguese Public Contracts Code.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.