The extraordinary update of the price of service procurement contracts with multiannual duration in light of Ministerial Order No. 54/2023, of 24 February
Article 42 of Law 24-D/2022, which approves the State Budget for 2023, provides for a system of extraordinary updating of the price of certain service procurement contracts, for which the labour component indexed to the guaranteed minimum monthly pay (“RMMG, on its Portuguese acronym”) was the determining factor in the formation of the contract price and which have suffered impacts resulting from the entry into force of Decree-Law 109-B/2021, of 7 December.
Paragraph 2 of that law further provided that “[the] circuits, time limits, procedures and terms of authorisation of the extraordinary update of the price, determined by the members of the Government responsible for the area of finance and the respective sectorial areas, are defined by government order of the members of the Government responsible for the areas of finance, economy and maritime affairs and labour, solidarity and social security”.
It was in this context that Government Order No. 54/2023 of 24 February was published.
A. Scope of application
With regard to the scope of application, Government Order No. 54/2023, of 24 February, in Article 2, states that its regime is applicable when the following requirements are cumulatively verified:
- When there are procurement contracts for cleaning services, security and human surveillance services, maintenance of buildings, facilities or equipment and canteen services – and not others;
- The contracts referred to in i. have a multiannual duration;
- Entered into on a date prior to 1 January 2023; or entered into after 1 January 2023, but which originated from tender procedures whose proposals were submitted on a date prior to 1 January 2023; and
- In relation to which, demonstrably, the labour component indexed to the guaranteed monthly minimum wage (RMMG) has been the determining factor in the formation of the contract price and has suffered substantial impacts resulting from the entry into force of Decree-Law No. 109 -B/2021, of December 7, not expected, respectively, on the date of conclusion of the contract or the date of submission of the proposal.
B. Application
Once all the above requirements have been verified, in order to obtain the authorisation for the extraordinary update of the price, it is important to consider the procedure and the specific deadline to be observed
Pursuant to Article 3(1) of Government Order No. 54/2023, the co-contractor has a period of 30 days to request recognition from the awarding authority that the contract price has suffered substantial impacts resulting from the entry into force of Decree-Law No. 109-B/2021, of 7 December – which approves the updating of the value of the minimum monthly salary guaranteed and creates an exceptional compensation measure – and the consequent extraordinary updating of the price referred to in Article 1.
Article 3(2) of the Government Order in question contains a relevant instructional precept: the said application must be accompanied by a financial report that demonstrates the aforementioned impacts on the contract price and which must be signed by the certified accountant of the co-contracting party. This financial report must show that the reasons that justify the request for special updating of the price were not due to a forecasting fault of the co-contractor, nor were inherent to the contract’s own risk, demonstrating that the anticipated increase in the RMMG was not initially included in the price, nor was inherent to the contract’s own risk, namely due to variations in salary costs, and the values to be considered must be deducted from the annual updates already provided for in the contract and take into consideration that this salary component represents only part of the overall value of the contract.
C. Assessment of the application
In relation to the deadline for the appraisal by the awarding entity of the requirement presented by the co-contractor under the above-mentioned terms, Article 4, No. 1 of the Government Order under examination, states that such appraisal should take place within a maximum period of 15 days.
D. Authorisation
If following the aforementioned assessment, the awarding authority concludes that the contractual price agreed upon has undergone a change not covered by the risks inherent in the contract under the terms of Article 42 of the State Budget Law for the year 2023, it must submit the process, within 15 days, to the members of the Government responsible for the sectorial areas and for the area of finance, with a view to authorising the extraordinary update of the price under the terms of paragraph 4 of Article 64 of Law No. 2/2020, of 31 March, as results from paragraph 2 of the aforementioned Article 4.
In addition, under the provisions of Article 5 of Government Order No. 54/2023, the said authorisation must be issued within a maximum period of 15 working days and shall take effect retroactively to 1 January 2022.
Finally, under the terms of Article 6, if contracts have been entered into with any of the entities provided for in Article 2 of Law No. 73/2013, of 3 September, authorisation is the responsibility of the respective deliberative body, or in the absence of such, the executive body.
February 2023
The legal article was written by Marco Real Martins and Sara Marques Lemos
