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Requests to amend ongoing public procurement contracts
Further to the Government's decision to close construction sites during the public-health crisis, which was enacted in the Grand-Ducal Regulation of 18 March 2020 introducing a series of measures to combat the COVID-19 pandemic (règlement grand-ducal du 18 mars 2020 portant introduction d'une sériee de mesures dans le cadre de la lutte contre le Covid-19), the City has received an increasing number of requests to change to the terms and conditions of ongoing public procurement contracts.
These requests mainly have to do with factors related to the period during which works were suspended, such as installation and security fees, and the extension of the performance period of contracts.
Here are the guidelines to follow further to these requests. They have been drawn up in accordance with the requirements announced by the Ministry of Mobility and Public Works (Ministère de la Mobilité et des Travaux Publics) in its statement of 14 May 2020. Please note that these guidelines apply only to works that were in progress when construction sites were ordered to close.
- Contractual periods are extended for 33 working days without penalty, which corresponds to the length of time that construction sites were closed, and 10% of the period since such sites were reopened, for as long as precautionary measures remain in place on the recommendation of the Ministry of Health (Ministère de la Santé).
- Regarding fees incurred further to the suspension of works, such as security fees or fees to get the site up and running again, and without prejudice to any other formalities successful tenderers may need to comply with, a substantiated request to amend the contract must be sent to the City of Luxembourg by registered post. The request must include supporting documents (e.g. invoices showing the dates of provided services) and information on whether any aid (e.g. coronavirus furlough leave [chômage partiel]) was granted for this purpose. Based on this information, the City's Cellule juridique (Legal Unit) will determine on a case-by-case basis whether the request to amend the contract is warranted in light of the fees incurred, in accordance with the Law of 8 April 2018 on public procurement, as amended (loi modifiée du 8 avril 2018 sur les marchés publics).
- However, fees incurred for the implementation of protective measures for employees, such as the purchase of personal protective equipment for workers, the modification of vehicles or the purchase of hand sanitiser and face masks, are overhead costs that must be borne by the business, which is personally required to ensure the health and safety of its employees (Articles L. 312-1 et seq. of the Labour Code [Code du travail]). The City will therefore deny any amendment or compensation related to these fees.
- The City's Cellule juridique and Service Finances (Finance Department) must be notified of any request to amend public procurement contracts that is sent to the City.