Código dos Contratos Públicos aprovado pelo Decreto Lei nº 18/2008 de 29 de janeiro

In a ruling dated March 19, 2026, the Supreme Administrative Court confirmed that the absence of the European Single Procurement Document (ESPD) from subcontractors—on whom the bidder relies to meet minimum technical capacity requirements—constitutes a remediable irregularity, rather than grounds for automatic exclusion of the bid. The issue arose in a restricted tender based on prior qualification organized by the IPO in Lisbon, in which the jury requested that this deficiency be remedied; the successful bidder rectified the situation and was ultimately awarded the contract, with the runner-up challenging the decision. The court relied on European law to uphold the remediability. It invoked Article 59 of Directive 2014/24/EU, which defines the ESPD as merely preliminary evidence and a formal declaration—and not as a contractually binding document—and Article 63 of the same Directive, which even permits the substitution of third parties when they prove unsuitable, without automatic exclusion of the candidate. Three CJEU judgments were also cited: the order of January 10, 2023 (C-469/22, Ambisig), which declared it incompatible with the Directive to require documents from third parties only after the award; the judgment of June 3, 2021 (C-210/20), which prohibited the automatic exclusion of a candidate when an auxiliary company provided inaccurate statements, requiring that the candidate be given the opportunity to replace it; and the judgment of January 22, 2026 (C-812/24), the most recente and decisive ruling, in which the CJEU held that the omission of the DEUCP for an entity linked to the candidate does not result in its exclusion, provided that the irregularity can be rectified in accordance with the principles of equal treatment and transparency. At the domestic level, the STA emphasized that Article 72(3)(a) of the Public Procurement Code expressly mentions the DEUCP as a document subject to the supplementation regime, without distinguishing between the candidate’s DEUCP and that of third parties. Any restrictive interpretation in this regard would lack a legal basis and would run counter to the spirit of the European legislator, who intended to subject all declaratory documents submitted as part of a tender to the same formal regime. Translated with DeepL.com (free version)