The (minimum) guarantee period for a (new) movable property as from 1 January 2022: a case of (tacit) amendment of the Public Procurement Code by Decree-Law 84/2021 of 18 October
As it is known, the Public Procurement Code (PPC) establishes the following in its articles 441, (3), and 444, (1), in terms of the substantive regime applicable to administrative contracts for the acquisition of movable property by public contracting authorities:
“Article 441
Conformity of goods to be delivered
[…]
- The provisions of the law governing the aspects relating to the sale of consumer goods and the guarantees related thereto as regards the conformity of the goods with the contract shall apply, with the necessary adaptations, to the contracts governed by this chapter.”
“Article 444
Obligations of the supplier in relation to the goods delivered
- The provisions of the law governing the aspects relating to the sale of consumer goods and the guarantees related thereto with regard to the responsibility and obligations of the supplier and producer and the rights of the consumer shall apply, with the necessary adaptations, to the contracts governed by this chapter.
(…)
- In addition to the obligations arising for the supplier from the provisions of the preceding subsections, the contract may stipulate an obligation of guarantee, the specific conditions of which, namely those related to the respective term and the obligations of the supplier, shall be established in the contract, and the provisions of the law referred to in (1) shall apply in this respect.
- The period of the guarantee referred to in the previous number shall not exceed two years, which can be longer when, in relation to an aspect of the execution of the contract subject to competition by the specifications, the supplier has proposed it.”
(emphasis added).
Briefly, such references of the legislator of the PPC to the Consumer Law (to the “law governing the aspects relating to the sale of consumer goods and the guarantees related thereto”) had the purpose of conferring to public entities the same protection that any other consumer has in the scope of purchase and sale contracts entered into between consumers and professionals. In other words: the legislator of the PPC understood that the Consumer Law contained a set of rules suitable for the protection of the public interest of contracting entities, when they enter into public contracts for the supply of movable goods, and did so in an absolutely comprehensive manner: by referring en bloc to the regime of the “law governing the aspects relating to the sale of consumer goods and the guarantees related thereto”, albeit “with the necessary adaptations. Therefore, it is to be understood that “the remissions operated by the PPC, in this case, are clearly by way of dynamic or formal remission, and not static or material, with the main consequence of this type of remission: the amendments to the rules which are the object of the remission are, in principle, also applicable in the cases to which the remission applies” (in this sense, Miguel Assis Raimundo, O Estado-consumidor: reflexos improváveis do Direito dos Contratos Públicos no Direito do Consumo, in “Estudos sobre Contratos Públicos”, 2010, AADFL, p. 115) which, in this case, has relevant practical consequences: the regime set out in the “law governing the aspects relating to the sale of consumer goods and the guarantees related thereto”, which is in force at any given time, is applicable to administrative contracts for the supply of movable property entered into by contracting authorities.
Thus, until 31.12.2021, the “law governing the aspects relating to the sale of consumer goods and the guarantees related thereto” was Decree-Law 67/2003, of 8 April. This decree-law was revoked by Decree-Law 84/2021, of 18 October, with effect from 01.01.2022 (cf. article 55). This is equivalent to saying that since 01.01.2022 the “law governing the aspects relating to the sale of consumer goods and the guarantees related thereto” to which the PPC refers is Decree-Law 84/2021.
One of the main changes brought by Decree-Law 84/2021 is the minimum guarantee period for new movable property subject to supply contracts: Decree-Law 67/2003 specified two years (cf. articles 5, (1)), whereas Decree-Law 84/2021 provides for three years (cf. 12. (1)).
In our understanding, this amendment to Decree-Law 84/2021 implies, as of 01.01.2022, a tacit amendment to article 444, (4) of the PPC: where it reads “two years” it should read “three years”. In fact, the indication that the guarantee period “shall not exceed two years” [if the guarantee period is not a competitive aspect: that is, if a longer guarantee period is sought, it must correspond to a factor or sub-factor of the tender evaluation model, i.e, has to be submitted to the competition, and therefore cannot be required – as an aspect not subject to competition – a period of five years, for instance] must be interpreted in an updated manner, in the light of the several dynamic or formal references (441, (3), and 444, (1)) that the PPC entails for the (new) “law governing the aspects relating to the sale of consumer goods and the guarantees related thereto” (Decree-Law 84/2021), and, therefore, it should be understood that the minimum guarantee period is now, since 01.01.2022, of three years.
Strictly speaking, the provision of “two years” contained in the wording of Article 444, (5) of the PPC is, without any doubt, made on the assumption that this was the guarantee provided for in Decree-Law 67/2003 (in force on the date of publication of the PPC); by changing this rule, the PPC itself changes, under penalty of losing coherence in the system, since we would have different guarantee periods (in Article 444, (5) of the PPC on the one hand and in Article 12, (1) of Decree-Law 84/2021 on the other hand), when clearly the legislator wanted and still wants (as the references of articles 441, (3), and 444, (1), of the PPC, impressively prove) that there is an alignment in this matter between Public Procurement Law and Consumer Law.
Lisbon/Funchal, February 2022.
Marco Real Martins
