What did Decree-Law No. 66/2025 change?
Decree-Law No. 66/2025 of 10 April amended Article 318 of the Public Procurement Code, approved as an annex to Decree-Law No. 18/2008 of 29 January, in order to avoid sanctions being imposed on the Portuguese State in the infringement proceedings brought by the European Commission against Portugal.
What Directive 2014/24/EU provides
At issue is Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement, which provides for the possibility of tenderers using subcontracting to perform a contract. Contrary to this directive, Article 318(4) of the Portuguese Public Procurement Code provided that the contract could prohibit the subcontracting of certain contractual services or of services whose cumulative value exceeded a percentage of the contract price – whereas Article 63(2) of the directive provides that contracting authorities may only require certain critical tasks to be performed directly by the tenderer itself.
What changes in Article 318 of the Public Procurement Code
Following the required legislative amendment, and in order to comply with the European Directive, Article 318(4) of the Public Procurement Code now only provides that certain critical contractual services, given the subject matter of the contract, must be performed directly by the contractor.
This amendment now allows subcontracting to take place regardless of the contract value, unless the specific nature of the service justifies that only the tenderer can perform it. In the interests of transparency, we hope this new wording does not become a disguised way of undermining transparency in public procurement procedures, with one company signing the contract and another, which was not subject to a tender procedure or scrutinised under public procurement rules, reaping its benefits.
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