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New extension of the mandatory implementation of e-government
In BOE No. 47, of 23 February 2013, was published on "Royal Decree-Law 4/2013, of February 22, measures to support the entrepreneur and stimulate growth and job creation". The most significant legislative modifications are the following:
a) The Revised Text of the Public Sector Contracts Act (TRLCSP):
- adding another thirty-second additional provision to it, relating to the “joint formalization of framework agreements for the contracting of services that facilitate labor intermediation” (article 15) in order to establish the conditions that must be met by all service contracts of homogeneous characteristics defined in the agreements signed between the State Public Employment Service (SPEE) and the Autonomous Communities or bodies dependent on them and integrated into the National Employment System, to facilitate the former job placement and which are intended to be awarded for a certain period, provided that the resource these tools are not made abusively or in a way that hinders competition, restricted or distorted.
- modifying articles 216.4 and 222.4, in order to specify the moment of accrual of late interest, which is worded as follows:
«216.4. The Administration will have to pay the price within thirty days following the date of approval of the work certifications or the documents that prove the conformity with the provisions of the contract of the delivered goods or services, without prejudice to the provisions of article 222.4, and, if delayed, shall pay the contractor, after the expiration of said period of thirty days, the interest on delay and the compensation for the collection costs in the terms provided for in the law 3/2004, of December 29, establishing measures to combat delinquency in commercial operations.
To take place at beginning of the calculation of term for accrual of interest, the contractor must have fulfilled the obligation to present the invoice to the corresponding administrative register, in time and form, within thirty days from the date of effective delivery of the goods or the provision of the service.
Without prejudice to the provisions of Articles 222.4 and 235.1, the Administration must approve the work certificates or the documents that prove the conformity with the provisions of the contract for the goods delivered or services provided within thirty days after the effective delivery. of the goods or the provision of the service, except as expressly stated in the contrary established in the contract and in any of the documents governing the tender.
In any case, if the contractor fails to comply with the thirty-day deadline for submitting the invoice to the administrative registry, the accrual of interest will not begin until thirty days have elapsed since the filing date of the invoice in the corresponding registry, without the Administration has approved conformity, if applicable, and made the corresponding payment. "
«222.4. Except in the works contracts, which shall be governed by the provisions of Article 235, Within thirty days from the date of the act of receipt or conformity, the corresponding liquidation of the contract must be agreed and notified to the contractor, and the corresponding balance, if applicable, will be paid.. However, If the Public Administration receives the invoice after the date of receipt, the period of thirty days will be counted from the date when the contractor submits the invoice in the corresponding register. If there is a delay in the payment of the settlement balance, the contractor will have the right to receive the interest of delay and the compensation for the costs of collectionin the terms
provided for in Law 3/2004, of December 29, establishing measures to combat delinquency in commercial operations. "
- and the sixteenth additional provision, to exclude from the general regulation of the uses of electronic, computer and telematic means the electronic invoices that are issued in the contracting procedures:
«F) All acts and manifestations of will of the administrative bodies or of the bidding companies or contractors that have legal effects and are issued throughout the contracting procedure must be authenticated by an electronic signature recognized in accordance with Law 59 / 2003, December 19th, of Electronic Signature. The electronic, computer or telematic means used must be able to guarantee that the signature complies with the provisions of this standard.
Notwithstanding the foregoing, electronic invoices that are issued in the procurement procedures will be governed by this point in accordance with the special regulations that apply.. "
- adding a new additional provision thirty SECOND, relating to the “obligation to present invoices in an administrative register and identification of bodies”:
1. The contractor will have the obligation to present the invoice that he has issued for the services provided or goods delivered to the corresponding administrative registry for the purpose of referral to the administrative body or unit to which the processing of the same.
2. In the specifications of administrative clauses for the preparation of contracts that are approved after the entry into force of this provision, will include the identification of the administrative body with powers in public accounting, as well as the identification of the contracting body and the recipient, which must be included in the corresponding invoice.»
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b) It is modified on the other hand, Law 3/2004, of December 29, which establishes measures to combat delinquency in commercial operations,:
-. Article 4. Determination of the payment period.
1. The payment term to be fulfilled by the debtor, if he did not set a date or payment term in the contract, will be thirty calendar days after the date of receipt of the goods or provision of the services, even when they had received the invoice or request for equivalent payment before.
Suppliers must send the invoice or request for payment equivalent to their customers thirty days before the effective date of receipt of the goods or the provision of services.
Once the payment period has been fixed in the contract, the receipt of the invoice by electronic means will produce the effects of beginning the calculation of payment term, provided that the identity and authenticity of the signer, the integrity of the invoice, and the receipt by the interested party are guaranteed..
2. If legally or in the contract there has been an acceptance or verification procedure through which the conformity of the goods or services with the provisions of the contract must be verified, its duration may not exceed thirty calendar days from the date of receipt of the goods or the provision of services. In this case, the Payment term will be thirty days after the date on which the acceptance or verification of the goods or services takes place, even if the invoice or request for payment had been received prior to acceptance or verification.
3. The payment terms indicated in the previous sections may be extended by agreement of the parties without, in no case can a period of more than 60 calendar days be agreed.
4. Invoices may be grouped for a certain period not more than fifteen days, by means of a comprehensive invoice of all the deliveries made during that period, periodic summary invoice, or grouping them in a single document for the purpose of facilitating the management of their payment, periodic grouping of invoices, and always taken as the start date of the calculation of the term, the date corresponding to the middle of the period of the invoice periodic summary or the periodic grouping of invoices in question, as the case may be, and the payment term shall not exceed sixty calendar days from that date.
Two. One is added new paragraph at the end of article 6:
In the event that the parties have agreed payment schedules for installments, when any of the installments is not paid on the agreed date, the interest and compensation provided for in this law will be calculated only on the basis of the amounts due.
Three. The first paragraph of section 2 of article 7 has the following wording::
2. The legal interest rate of late payment that the debtor will be obliged to pay will be the sum of the interest rate applied by the European Central Bank to its most recent main financing operation carried out before the first day of the calendar semester in question. plus eight percentage points.
Four. Article 1 (8) is worded as follows:
1. When the debtor incurs a default, the creditor will have the right to charge a fixed amount of 40 euros from the debtor, which will be added in any case and without the need for an express request to the principal debt.
In addition, the creditor will be entitled to claim one from the debtor compensation for all duly accredited collection costs that you have suffered because of the delay of this and that exceed the amount indicated in the previous paragraph.
Five. The heading and section 1 of article 9 have the following wording:
Article 9. Abusive clauses and practices.
1. They will be null and void the clauses agreed between the parties on the date of payment or the consequences of the delay that differ in terms of the payment term and the legal interest rate of delay established as a subsidiary in article 1 (4) and 2 (7), respectively, as well as the clauses that are contrary to the requirements to demand the delay interest of article 6 when they have an abusive content to the detriment of the creditor, considered in all the circumstances of the case, among them, the nature of the product or service, the provision by the debtor of additional guarantees and the common uses of trade. A clause that excludes compensation for collection costs of article 8 will be presumed to be abusive.
The repeated practice of abusive terms may not be considered habitual use of the trade. Such practices will also be considered abusive and will be challenged in the same way as the clauses by the entities referred to in section 4 of this article.
To determine if a clause or practice is abusive to the creditor, it will be taken into account, among other factors, if the debtor has any objective reason to depart from the payment term and the legal rate of the late interest provided in article 4.1 and Article 7.2 respectively; The nature of the good or service will be taken into account or if it is a serious deviation from good business practices contrary to good faith and fair action.
Also, to determine if a clause or practice is abusive will be taken into account, in all the circumstances of the case, if it is mainly used to provide the debtor with additional liquidity at the expense of the creditor, or if the main contractor imposes on its suppliers or subcontractors some payment conditions that are not justified by reason of the conditions of which he is beneficiary or by other objective reasons
- Third transitional provision. Pre-existing contracts.
They will remain subject to the provisions of Law 3/2004, of December 29, establishing measures to combat delinquency in commercial operations, with the modifications introduced in this law, the execution of all contracts from one year from their entry into force, even if they had been concluded before. (February 24, 2014)