The Court of Auditors reported an “erroneous setting and subsequent misleading and incorrect publication” of the estimated contract value in the Official Journal of the European Union and the Official Gazette of Portugal, listing 170,000 euros “instead of the actual up to 11,137,200.00 euros”.
The court argues that this objectively heightens the “low apparent attractiveness” of the tender, leading to a “violation of legal rules that mandate pre-contractual transparency and the promotion of open competition to as many economic operators as possible”.
The contract in question, for acquiring digital production services, planning, execution, monitoring, and purchase of space for digital advertising campaigns, “out of home”, cinema, radio, television, and press, was signed on March 19, 2025, between the Association for the Promotion of the Autonomous Region of Madeira (APM) and the company Nova Expressão, Planeamento de Media e Publicidade, S.A.
The Court of Auditors cites the setting and publishing of the base price “below” as illegalities and also points to “pre-contractual illegalities” it considers “capable of altering the financial outcome of this contract”.
According to the court, the contract became “much less attractive to economic operators than it was in reality”.
In response to the Court of Auditors’ decision, the Association for the Promotion of Madeira explained that its legal department determined that, in the case of the pre-contractual procedure commonly referred to as ‘Media Agency’, the procedure to follow should be an international public tender.
In a statement, the Association for the Promotion of Madeira clarifies that under this tender, the service provision has a base price corresponding to the maximum value of 170,000 euros and not, as determined by the Court of Auditors, 11,137,200.00 euros.
“This is because, according to the legal department, the difference is not for the services ‘stricto sensu’ to be provided, but rather for expenses to be incurred with online media (specifically Facebook, Instagram, TikTok, Google, etc.), values to be determined in a public digital auction, and offline, on which the awardee will not receive any commission,” it states.
The Association for the Promotion of Madeira emphasizes that the reasoning followed, deemed illegal by the Court of Auditors, was that the awardee winning the tender will receive a maximum of 170,000 euros over three years, corresponding to the maximum value of the services under the pre-contractual procedure, therefore this was understood to be the base price.
“The legal department of APM believes that the expense in media (10,967,200.00 euros) should be considered in the contract value and not in the base price, which is clear from the procedural documents, which are public,” it explains.
On the other hand, APM considered filing an appeal against the decision to refuse approval in prior oversight, but ultimately decided that the uncertain outcome of the appeal and the time it would take to obtain a decision were “likely to jeopardize the interests of Madeira”.
Therefore, it concluded that “launching a new tender, following the guidelines resulting from the refusal of approval, would more appropriately ensure the satisfaction of Madeira’s interests”.
“The Association for the Promotion of Madeira […] is already preparing the launch of a new pre-contractual procedure, following the direction advocated by the refusal of approval by the Court of Auditors,” it clarifies, stating that the contract in question “never produced any effects”, so “the refusal of prior approval does not constitute a conviction”.
