If it quacks like a duck...

I mentioned a couple of times in this blog that the 2021 reform to the Portuguese Public Contracts Code implemented some questionable choices under the guise of facilitating the award of contracts to make the most of the Recovery and Resilience Facility. However, until now I had not noticed what for me it is the best example of the 'strategic dis-application of EU procurement rules'.

The 2021 revision amended Article 42 of the Public Contracts Code on technical specifications. This provision includes contract performance clauses as well. These are posited as possibilities for contracting authorities to adopt and are not mandatory. On paragraph 6 the revision included a new subparagraph e) on 'promoting the local and regional economy.' Can anyone spot the problem with this idea?

This subparagraph e) needs to be read in context with some of the other novelties from the 2021 revision, like the promotion of a circular economy and 'short supply chains' from subparagraph f).

I think it is self-evident what is the intent of both these provisions and how the Portuguese lawmakers in 2021 saw public procurement: as a tool for making sure public contract money is spent in Portugal. The timing of this amendment (mid-July 2021) matches the timeframe of the development of the tender for the trains in Portugal designed to foster the creation of a train factory in the country.

The two subparagraphs may not look identical at first sight but the logic underpinning them is the same. However, one is more egregious than the other. I think it is unsurprising that subparagraph e) was revoked in the next amendment to the Code in 2022.

As for subparagraph f) I will have some things to say about it next week in Copenhagen.