Modification of Royal Decree-Law 3/2022, of March 1, regarding price reviews in public works contracts.

On March 30, 2022, Royal Decree-Law 6/2022, dated March 29, 2022, was published in the Official State Gazette (BOE), adopting urgent measures within the framework of the National Plan of response to the economic and social consequences of the war in Ukraine (RDL 6/2022), which, among many other aspects, modifies through its thirty-seventh additional provision, the recently published RDL 3/2022, which contemplates a series of exceptional measures regarding price reviews in public works contracts.

• Modification of Article 6.1, regarding the scope of application. The assumptions for applying the price reviews in public works contracts are extended, not only to contracts that were in execution at the time of the publication of RDL 3/2022, but also to those that are in the phase of "bidding, award or formalization at the entry into force of this Royal Decree-Law or whose award notice of formalization is published on the public sector procurement platform within a period of one year from the entry into force of this Royal Decree-Law".

Likewise, a new paragraph is added to this section, which recognizes the right to the exceptional price reviews in "public works contracts, whether administrative or private, awarded by any of the entities that are part of the state public sector, whose bidding notice is published on the public sector contracts platform within one year from the entry into force of this royal decree-law and whose particular administrative clauses specifications establish a price review formula, provided that the circumstance established in this royal decree-law is met."

• Paragraph 4 is added to Article 6 regarding the exclusion from the scope of application of public sector entities operating in regulated sectors whose investment regime has been closed in the last 9 months.

• Modification of Article 7 regarding the requirements that must be met for the recognition of the price review, specifically:

• The direct and relevant impact on the economy of the contract must be accredited during its term and until its completion, i.e., once the reception certificate has been formalized and the corresponding final certification has been issued.

• The impact must be calculated by applying to the contract amounts certified in a given period, which may not be less than one fiscal year or more than two fiscal years. It is specified that the excess of 5% refers to the contract amount certified in the same period.

• The possibility is added of establishing, by Order of the Ministry of Finance and Public Function, other materials -other than steel, bituminous, aluminum, copper- whose cost increase must be taken into account for the purposes of the review.
• Clarifications are added to article 8 in relation to the calculation of the exceptional review:

• When a price review formula is established in the PCAP, the calculation period will begin on January 1, 2021 or from the first certification if this is later.
• The same start of the calculation period is foreseen in the event that the PCAP does not establish a price review formula and it is also indicated that, when it exists, the formula that "appears in the construction project that served as the basis for the bidding of the same" may be applied.
• In both cases, the date to be considered as a reference for the price indexes represented with sub-index 0 in the review formulas will be the date of formalization of the contract, provided that the formalization takes place within three months from the end of the period for submission of bids, or with respect to the date on which said three-month period ends if the formalization takes place later. In any case, if the formalization date is prior to January 1, 2021, December 31, 2020 shall be taken as the reference date.

• Modification of Article 9.1 regarding the procedure and, specifically, the elimination of the term by virtue of which the contractor could request the price review, which is no longer 2 months from the entry into force of RDL 3/2022 or from the publication of the price indexes of the last quarter, but may be requested throughout the term of the contract, and in any case, prior to the approval by the contracting body of the final works certification.