Nuno Igreja Matos and Teresa Sousa Nunes analyse criminal risks in public procurement

In an opinion piece published in Observador, Morais Leitão lawyers Nuno Igreja Matos and Teresa Sousa Nunes examine the growing criminal scrutiny surrounding public procurement in Portugal. Reflecting on the rise in criminal investigations and the expanding scope of offences, the authors question the effectiveness of relying on criminal law to address procedural irregularities, and advocate for a more balanced, preventive and proportionate approach.

The increasing criminalisation of public procurement in Portugal is the focus of a recent article by Nuno Igreja Matos and Teresa Sousa Nunes, lawyers at Morais Leitão. In the text, they examine the expansion of criminal investigations linked to public contracts and argue for a more measured and structured legal response, combining robust internal prevention with a rational use of the criminal justice system.

The article, titled Crime in public procurement: a thing that builds and destroys, highlights the rise in criminal proceedings involving public contracts, driven by anonymous complaints and the expansion of criminal offences. “Criminal proceedings concerning public procurement have never been so frequent. There are several causes: from the massification of anonymous reporting, which the law requires to be taken seriously, to the expansion of the crimes themselves.” In 2025 alone, cases were reported involving the procurement of firefighting equipment, IT systems, communications services, recruitment, and real estate acquisition. Suspicion has become widespread, affecting everything from large-scale projects to minor contract awards.

The authors identify a wide “criminal menu” including corruption, improper receipt or offer of advantage, misconduct in public office, abuse of power, influence peddling, extortion, embezzlement, and unlawful participation in business. Yet, they caution that “the maximisation of criminal suspicion should also, on a more general level, be resisted. Not for reasons of impunity, which in this area must be firmly rejected, but in the name of the balance between jurisdictions and of the public interest itself.”

Their prevention strategy rests on two pillars: full implementation of the General Anti-Corruption Regime and sound internal organisation. “Prevention depends on prudent internal organisation that clearly defines responsibilities, promotes internal control mechanisms, and avoids excessive concentration of decision-making power.” A robust system, they argue, “dilutes individual intervention, minimises the risk to individuals, and shields corporate liability.”

In terms of legal defence, the authors identify key factors in securing dismissals or acquittals, noting that not all irregularities rise to the level of criminal conduct. “There is a clear boundary between, on the one hand, improper aspects in the conclusion or performance of public contracts and, on the other hand, criminal territory.” The absence of material public harm is often decisive. “Except in rare cases, mere breaches of formal rules are not sufficient to justify criminal charges.”

They further emphasise the importance of intent. “The crimes associated with these situations mostly require a specific intent to cause harm or confer benefit.” However, “rarely do suspicions concerning procurement procedures meet this threshold of intent.” Often, shortcomings are due to “negligence or lack of care; urgency in contracting; or the imposition of a political decision, backed by democratic bodies, that consciously takes procedural risks in the name of other priorities.”

For the authors, criminal proceedings are not always the best route. “Subjecting any occurrence to criminal scrutiny means choosing a path that is more demanding in terms of proof, more time-consuming and, above all, harmful to the public interest when more effective alternatives exist within the contractual framework or through financial liability mechanisms.”

Read the full article in Observador.