The “Contract Manager” was one of the great innovations of the ninth amendment to the Public Contracts Code, and it is an important tool to promote quality performance. Although we consider it to be a positive measure, it seems clear to us that here is a need for more regulation.
Public management of public contracts: an imperative.
Article 290.º-A, number 1 of the CCP provides that the public contractor must designate a contract manager. It is also referred in the article 96.º, number 1, al. i) of the same diploma that the identification of the contract manager on behalf of the contracting authority is an integral part of the contract, when it is reduced in writing, being a legal imperative, whose non-compliance will result in the contract invalidity unless that identification is included in the documents provided for in the number 2 of the article 96 of the CCP, namely in the specifications.
The question is whether this legal requirement applies to all public contracts (eg instant execution contracts). Although this figure appears to be intended for contracts with a minimally long duration, the fact is that the law does not any distinction about its applicability, being compulsory, in principle, for all public contracts, even if it seems to us to be excessive.
Regarding the choice of the manager, law does not define whether the manager should be a titular or member of the organ, manager or worker, or, alternatively, whether outsourcing is possible.
We do not see any legal obstacle to outsourcing these services, however we are faced with the situation (caricature) that there is a need of a manager for the manager.
Whether it belongs to the staff of the body or to external services, it seems clear that the manager will always be subject to the general regime of the Code of Administrative Procedure, in particular in matters of impediments, incompatibilities and suspicions, to the principles in article 1.º- A of the CCP, and must also subscribe to a declaration of non-existence of conflicts of interest, applying, by analogy, the article 67.º, number 5, of the CCP.
Despite these impartiality guarantees, the contractor may always react to the choice of the manager, namely through a complaint against the draft of the contract, or through the administrative impugnation.
Contract Manager Functions
The primary function of the contract manager is the permanent monitoring of the performance of the contract. In the case of contracts with special characteristics of technical or financial complexity or of long duration, number 2 of the article 290.º-A of the CCP provides that the manager must draw up appropriate quantitative and qualitative performance indicators for each type of contract that allow, among other aspects, to measure the levels of performance of the contractor, the financial, technical and material execution of the contract. That means that, existing this permanent monitoring in the performance of the contract, the manager, checking any abnormal situation, can act immediately, thus avoiding the aggravation or that anomalous situation lasts in time.
It should be noted that Regional Legislative Decree No 6/2018/M in its article 8º goes even further in defining the functions of the contract manager, providing that it is still responsibility of the manager to monitor and ensure the compliance of the declaratory obligations relating to income generated in the Autonomous Region of Madeira and, in the cases of inspection provided for in article 394 of the CCP, to verify if all contractual and legal obligations of the contractor are fulfilled in a complete and perfect way, namely regarding to the subcontracts celebrated, when applicable.
Responsibilities of Contract Manager
As already mentioned, the contract manager has the obligation to report, in case of detection of deviations, defects or anomalies in the performance of the contract, acting in accordance with the rules of good management, otherwise they could incur in civil responsibility, being applicable the regime of extracontractual civil responsibility of the State and other public entities, and/or criminal law. If the contract manager belongs to the staff of the Contracting Entity, it is added disciplinary responsibility to what should happen in most cases.
Conclusion
The creation of the contract manager’s role provides greater security and transparency in the execution of public contracts, presenting as an added value for the rigor, efficiency and effectiveness in its management.
To that end, it seems essential to require management to ensure that the object in question is mastered.
Notwithstanding the good legislative intentions, this new figure of the contract manager in our legal system still raises doubts and difficulties in its concrete application, in particular by the tendency to approach it to the inspection, imposing the need for greater regulation.