Judgment No. 10603 of 2024: Reservations and Waivers in Public Procurement

The world of public procurement has always been characterized by a series of rules and procedures that protect the interests of the parties involved. The recent order No. 10603 of April 19, 2024, by the Court of Cassation, presided over by A. V., offers important clarifications on the issue of reservations made by the contractor and their potential waiver. Let's look at the details of this judgment and its implications.

Context and Significance of the Judgment

In this order, the Court examined a specific case concerning a contract for the construction of public works. The central issue was whether the contractor's signing of a submission deed, containing amendments to the original agreement, could be interpreted as a tacit waiver of reservations made during the execution of the works.

Generally. In the context of public works contracts, the contractor's signing of a submission deed containing amendments to the original agreement and relating to a variation and adjustment of the project for the completion of the works, cannot be understood as a waiver by the contractor of reservations made during the course of the works. Such a waiver requires a specific declaration of intent by the holder of the waived right, or a conclusive behavior by the same that unequivocally demonstrates their actual and definitive will to relinquish their right.

The Court thus established that, for a waiver of reservations to be considered valid, an explicit declaration by the contractor is necessary, or behavior that clearly demonstrates their intention to waive such rights. This position is in line with general legal principles, according to which the waiver of a right must be express and cannot be implicitly inferred.

Implications for the Public Procurement Sector

The judgment has important consequences for operators in the public procurement sector, particularly for contractors. Here are some key points:

• The need to always formalize waivers of reservations through written documents.
• The risk of misinterpretations by clients regarding the contractor's intentions.
• The possibility of challenging administrative decisions in the absence of a clear intention to waive.

It is therefore crucial for contractors to pay attention to the language used in contractual documents and to the methods of communication with clients.

Conclusions

In conclusion, order No. 10603 of 2024 represents an important step forward in protecting contractors' rights. It emphasizes the importance of a clear and documented waiver of reservations, thereby avoiding future disputes and misunderstandings. Operators in the sector must be aware of these guidelines to best manage their contractual relationships and protect their rights.