A Decisão de não adjudicação – rever posições em tempo de crise?

Abstract

This study intends to make a brief reflection on the current legal framework of the decision of not award the tender, which finds its regime in the article 79 of the Public Contracts Code. It addresses the issue of whether the list of causes for non-award provided for in that provision is an exhaustive list, which does not leave the Administration for reasons other than those or whether, on the contrary, the regime should require a certain flexibility, allowing to the contracting entities the decision of not award even when none of the facts mentioned in subparagraphs a) to g) of paragraph 1 of article 79 of the Code are verified. Visiting the various reasons legally provided for not awarding a tender, it is reflected on whether they encompass all situations in which it is important to protect the position of the acquiring administration and whether it should open up the possibility of opting not to award based on other reasons. The analysis of the regimes previously in force and of the positions of the doctrine frame the position on the best interpretation of the norms currently in force, which includes the possibility of the contracting entities being able to define the concrete public interest of each procedure. Indeed, the crystallization of the reasons that may lead to non-award may harm the public interest, as a formally acceptable tender may not respect the interest of the contracting authority, especially in contexts of economic and financial crisis. Should the public entity award a contract that does not serve the purposes of the hiring decision? Always defending that the protection of the public interest cannot fail to coordinate with the principles of good faith, transparency or stability, the defended position admits the extension of the reasons for non-award when this option is, in concrete and duly demonstrated, more beneficial to the public interest.