Bs. As. 10/10/75
VISTO proposed by the Secretariat of State for Transport and Public Works, and
Article 6 of Act No. 12.910 provides for the inclusion in contracts of national public works of regimes that recognize, on an equitable basis, the concurrent cost variations to their realization.
That, as a result of the international economic situation and its impact on the domestic market, coupled with the increased purchasing power in the majority of the population, there have been misalignments in the previous relationship between the various elements that make the composition and integration of the costs, as well as circumstantial disbursement of various construction materials in square.
The fact that the distorting action of these factors has proved that in many cases the contractually adopted methods for the liquidation of cost variations are inadequate and therefore inequitable, since in their practical application they do not produce results that faithfully reflect the greatest erogations suffered by the construction contractors.
That the doctrine and administrative jurisprudence have established the origin of correcting such a state of affairs by modifying the systems that have lost their operational effectiveness by changing the economic conditions under which they were conceived, replacing them with others that conform more appropriately to the current circumstances (T.A. N. s. 1977, 2002, 2010, 2014 et al. and Dictamen Procurator of the Treasury of the Nation 13/8/64/
That such a procedure does not affect guiding principles in the field of tendering and hiring of works, such as those that consecrate the intangibility of contracts and respect for the proper equality of offerers, since they only try to avoid the pernicious consequences of overcoming and unforeseen facts, impossible to be resolved according to the agreed and to which all proponents were found in the same situation.
On the contrary, it satisfies not only the provisions and purposes of Act No. 12,910, but also the requirements of commutative justice, in accordance with article 1198 of the Civil Code, equitably improving the effects of the contract, as the provision of one of the parties has become excessively onerous following unforeseen circumstances.
That by virtue of the status of article 3 of Decree No. 3772/64 the Shares and Companies of the Comitent State have technical and legally competent Liquidating Commissions to study cases where distortions are detected in the result of the application of the agreed liquidation regimes and to propose the appropriate solutions to be adopted in order to restore the necessary equity in the recognitions required by article 6.9 of Act No. 12.10.
THE PROVISORY CHAIRMAN OF THE SENATE OF NATION IN EXERCISE OF THE EXECUTIVE POWER
Article 1 - The Liquidating Commissions established by Article 3 of Decree No. 3772/64, in the event of significant distortions in the liquidation systems of cost variations included in the contracts under implementation, shall, on the basis of duly substantiated background and conclusions, resolve the adoption of a new mechanics that conforms to the existing conditions at the time of the execution of the work, equitably reflecting the true variations in costs produced during that period.
Art. 2o - The resolutions adopted by the Liquidating Commissions shall be definitively approved in each case by the appropriate authority in accordance with the legal and regulatory regime to which each division is subject.
Art. 3o - The contractor shall demonstrate its conformity or remedy with the new mechanics for the liquidation of the cost changes. In the event of disconformity, it must inform it within the QUINCE (15) administrative working days of notified, attaching the judgement elements that it deems to do to its right and requesting reconsideration of the measure, to the respective Liquidating Commission, which, with the information and informed opinion on the case, must raise it at the end of CINCO (5) administrative working days to the superior body for final review. If your request was rejected, you may appeal to the Arbitral Tribunal Act No. 12.910 in accordance with the rules that for the appeal to the said body the decrees number 1978/64, art. 9, inc. 3; 3772/64, art. 4; and 7759/67, art. 1.
Art. 4o - Contact, post, give to the National Directorate of the Official Register and archvese.
Antonio F. Cafiero