1.
The FPS Economy has just published a new index, "I-2021", intended to replace the former "materials" index used in the price revision formulas of public contracts and of certain private construction contracts. This new index constitutes a first response aimed at correcting the effects of the negative revision that undertakings suffered in 2019 and 2020.
Although public contracts are governed by the principle of the fixed price, the legislation (Article 10 of the Act of 17 June 2016 on public procurement) authorises the annual revision of the prices proposed by the successful contractor, on the basis of specific economic or social factors.
Price revision is mandatory for public works contracts, except where their value is below EUR 120,000 excluding VAT or their performance period is less than 120 working days or 180 calendar days. The same applies to certain services "sensitive to fraud".
Revision is, by contrast, optional for supply and other services contracts (Article 38/7 of the Royal Decree of 14 January 2013).
The contracting authority may only exclude price revision, where it is mandatory under the regulations, subject to compliance with two requirements:
- on the one hand, this derogation is only possible "in duly justified cases" (Article 9, § 4, of the Royal Decree of 14 January 2013), it being understood that this statement of reasons must appear in the administrative file;
- and, on the other hand, provided that the mention of a derogation from Article 38/7 appears at the head of the special tender specifications (Article 9, § 4, fourth paragraph, of the Royal Decree of 14 January 2013).
2.
Where revision applies, it must be the subject of a clear, precise and unambiguous price revision formula in the contract documents.
The Act (Article 10, second paragraph) stipulates that "Price revision must reflect the change in the prices of the main components of the cost price." Likewise, Article 38/7 of the Royal Decree of 14 January 2013 requires that the price revision formula have the following characteristics:
- it is based on objective and verifiable parameters;
- it uses appropriate weighting coefficients;
- it thus reflects the actual cost structure;
- it may include a fixed, non-revisable factor, depending on the nature of the contract.
3.
As regards works contracts, a list of construction material prices, called the "Mercuriale", is published monthly by the FPS Economy, after consultation of the Construction Materials Prices Commission. This list of construction material prices constitutes a price monitoring system intended to reflect, by means of an "I" index, the change in the prices of several categories of construction materials.
The "I" index was launched in 1955. It was established on the basis of a number of prices designated by the Ministry of Public Works as reference prices for public works. It includes a selection of some 26 categories of construction materials together with their prices.
4.
An "S" index representing wages and social security charges is also the subject of official publications.
5.
Contracting authorities generally use these indices to formulate their price revision clause.
The use of this index is also applicable in the context of housing built pursuant to the Breyne Act.
The formulas are generally presented according to a structure similar to the following:
