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New Decree-Law no. 73/2021, of 18 August

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On 18 August last, Decree-Law no. 73/2021 was published, amending the price revision regime of public and private works contracts and the acquisition of goods and services provided for in Decree-Law no. 6/2004, of 6 January, which enters into force 30 days after its publication, which took place on 18 August and is only applicable to contracts resulting from procedures initiated after its entry into force.

The changes introduced by Decree-Law no. 73/2021, of 18 August, are a response to the need to adapt and reconcile the aforementioned price revision regime with the provisions of the Public Contracts Code, including the updating of references that were still made to the legislation prior to that codifying diploma.

From a procedural point of view, it particularly highlights (i) the provision of the possibility for interested parties, within the first third of the deadline for the submission of bids, to propose the regime to be applied to the price revision, if this is not provided for in the specifications or, if it is, to submit requests for its correction or alteration, if they consider it to be inappropriate to the specificities of the contract in question (ii) the provision that the competent body for the decision to contract must inform which formula or formulas of the price regime to be included in the bids to be submitted, failing which none of the requests will be accepted, and (iii) the provision of the exclusion of the bids that do not contain the formula of the price revision regime that has been communicated by the competent body for the decision to contract under the terms described in (ii).

From the processing point of view in the execution phase of the contract, it should be noted that, even though the revisions must be calculated by the client, the contractor may submit, on its own initiative, the price revision calculations, prepared under the same terms as those established for the client, in which case the client has 60 days to comment on them, being able to, in the case of non-acceptance, present a counterproposal; the calculations shall be considered accepted if the client does not notify the contractor within the aforementioned period.

On the other hand, the provision that, in the absence of a contractual provision as to the date or term of payment, the pecuniary obligation becomes due, without the need for further notice, with the necessary adaptations, applying the provisions of article 299 of the Public Contracts Code, as well as the change to the rule that the right to price revision lapses with the account of the construction work, the rule now being that it lapses within one year after provisional acceptance of the construction work, without prejudice to the exceptions set out in the law.

Finally, article 22-A is introduced into Decree-Law no. 6/2004, of 6 January, stating that the standard formulae provided for in Order 1592/2004, published in the Diário da República (Official Gazette), Series II, no. 19, of 23 January 2004, and Order 22637/2004, published in the Diário da República (Official Gazette), Series II, no. 260, of 5 November 2004, shall remain in force.

Text by Sérgio Alves Ribeiro

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