COMMUNICATION
On August 18 it was published Decree-Law no. 73/2021, which amends
the legal regime on price revision of public and private constructions and
acquisitions of goods and services, approved by Decree-Law no. 6/2004, of 6
January.
This amendment intends
to update the legal regime on price revision (from 2004) to the Public
Contracts Code (“PCC”), approved by Decree-Law no. 18/2008, of 29 January.
From the set
of amendments introduced by the legislator, the following innovations may be highlighted:
Modification of price revision clauses (article 3)
Correction
or modification of the price revision scheme established in the tendering
specifications should be requested by the tenderers within the first third
of the deadline granted for the submission of the bid.
In case of
omission of the tendering specifications, the price revision scheme should also
be submitted within the same timeframe.
In this
context, failure to identify price revision formula established by the contracting
authority within the second third of the deadline granted for the submission of
the proposals, in reply to the above-mentioned requests, constitutes grounds
for the rejection of the tender.
Price revision of supplementary
works (article
11)
Price
revision of supplementary works now operates as follows:
- For works of the same type of works foreseen in
the contract, the contractual revision scheme shall apply, provided that those
supplementary works are carried out in similar conditions as those of the contractual
works;
- For works of a different type from other works
foreseen in the contract or works of the same type but performed under
different conditions, the contractor must submit an offer with price and
execution time for such works, in which case formula or warranty costs price
revision methods shall apply depending on the type, quantity and duration of those
works.
Extension of the contractual
execution time (article
13)
Any
extension of the contractual execution time implies a price revision
calculated in accordance with the readjusted payment plan, provided that such
extension is not due to the contractor’s fault. Hence, the application of the
readjusted payment plan regime is no longer limited to legal extensions.
Responsibility for price revision calculation
As a rule,
the construction owner must calculate the price revision, unless otherwise
provided in the contract.
However, the
legislator has defined a maximum 60-day period within which the
construction owner must comment on the price revision calculations proposed by
the contractor. In the absence of any communication within such period, the
calculations submitted by the contractor shall be deemed accepted (article 15,
paragraphs 3 and 4).
It is
acknowledged that the result of the price revision, calculated at the end of
the contractual execution time, including legal extensions or determined by
judicial or arbitral award, is not limited by the Base Price of the contract or
by the thresholds related to the choice of the public procurement procedure
(article 1, paragraph 5).
Payment of the price revision (article 17)
The deadline
for payment of the price revision is 30 days, without further notice, counted
from the verification of the situations listed in article 299 of the PCC,
applicable mutatis mutandis, unless otherwise contractually foreseen.
Statute of limitation of the right
to price revision (article
19)
The statute
of limitation of the right to price revision has been extended to one year
upon provisional reception of the work, except in the cases referred to in
the paragraphs of article 19 of Decree-Law no. 73/2021, of 18 August.
On the other
hand, if the construction owner does not execute the final bill of the works,
the right to price revision expires upon definitive reception of the work.
Decree-Law no.
73/2021 of 18 August enters into force on 17 September 2021 and shall
apply to the contracts resulting from public procurement procedures initiated
after that date.
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