The new Public Procurement Law of Angola, Law no. 41/20 of December 23, revoked Law no. 9/16 of June 16 and entered into force on January 22, 2021.
The new legislation will be applicable only to the new public procurement proceedings (safeguarding the applicability of Law no. 9/16 to the proceedings/contracts that were already in execution before January 22), and regulates public contracting related with public works, purchase and lease of goods and services, public concessions, exploitation of public assets, and public-private partnerships; commercial contracts consequence of loans by public entities will be regulated by the new legislation as well.
Apart from the public entities as the Angolan State, local governments, and public companies, the new regulation also applies to all Public Law entities, which correspond to any legal person that pursue public interests without commercial or industrial nature, if it is financed by the Angolan State.
Are not included in the scope of Law no. 41/20, i) legal services provided by a lawyer on arbitration or judicial procedure nor the legal services provided to prepare these types of procedures and ii) contracts performed by public companies that are not financed by the Angolan State, except regarding concession contracts, transfer of exploration public rights or of contractual position.
It was introduced the Electronic Dynamic Proceeding, which takes place through an electronic platform, permitting the purchase of standard goods and services through an electronic catalogue, joining in the platform certified providers and public entities and permitting an extremely prompt contracting proceeding.
Following the Covid-19 Pandemic and preparing any future urgency, it was as well foreseen a Public Procurement Emergency Procedure, applied when emergency reasons demand it. Its main characteristics are the informalization and rapidness of the procedure, being adopted to face unforeseeable events, not imputable to the adjudicating entity. Are considered emergency situations, events as cybernetic attacks, epidemies and natural disasters, among others.
Values regarding each type of proceeding were updated. Now, the Tender limited by Invitation applies to contracts whose value is equal or inferior than AKZ 182,000,000.00 and the Simplified Contracting applies to contracts whose value is equal of inferior than AKZ 18,000,000.00. The Electronic Dynamic Proceeding permits contracts of any value. When the contract refers to a concession, the applicable proceeding will be, mandatorily, the Public Tender or the Tender limited by Previous Qualification.
Concerning the evaluation of proposals, were densified the criteria that shall be taken into account to select the most economically advantageous proposal. The objective criteria that shall be considered are: the technical value; social, environmental and user-friendly characteristics; suppliance and delivery conditions; technical assistance after sale; number of jobs created, among others.
In contracts with value equal or superior to AKZ 182,000,000.00, it is necessary to present a guarantee, whose amount shall be established between 5% and 15% of the contract value.
When the contract regards the lease and/or purchase of movable goods or provision of services until AKZ 18,000,000.00, or regards Public Works until AKZ 36,000,000.00, it is not necessary to draft a written contract.
The new legislation also foresees a transgressional regime, based in fines stipulated according to an official table of values, which is attached to this law. It is also possible to apply the sanction of interdiction of participation in public contracting proceedings.
The new Public Procurement Law does not introduce major modifications to the previous regulation, its main objectives are the simplification, flexibilization, and enhancement of the guarantees of the Public Procurement legal framework.
Article by Marco Correia Gadanha
Marco Correia Gadanha
Marco Correia Gadanha is a partner of the Portuguese law office MC&A. He is specialised in legal advice to international transactions. Marco has extensive experience of legal practice in Portugal and in the Portuguese-speaking African countries. Since 2008, he has practiced mainly in the areas of labor and litigation, assisting national and international clients in these and other matters, namely corporate law, especially in Portugal, Angola and Mozambique. He graduated at the University of Coimbra in 2005 and he holds post-graduations in Labor and Angolan Law.