The amendment to the Public Procurement Law of 29 January 2004, which entered into force on 26 July 2016, introduced revolutionary changes to the regulations concerning the premise of a negotiated contract – a change in the contract concluded as part of public procurement. After the changes, additional orders, in particular additional construction services, which previously had to be the subject of another, separate procedure, may be included into an annexe or agreement to an already concluded contract.
“Possible” additional construction services are in fact an inseparable element of every investment, starting from municipal investments and ending with projects worth billions of PLN. Nearly every project brings about various unforeseen situations, when the Contractor moves from the formal level to the level of the execution of the contract in field. The huge range of such situations includes in particular archaeological artefacts hidden in the ground, underground elements of infrastructure, of which the parties were not aware (e.g. an active 6 kV cable, gas pipelines, etc.), a necessity to remove the effects of catastrophes or adverse weather phenomena, ground parameters that turn out to be different from the expected ones and many more.
If it is properly documented, any such phenomenon may become the basis for amending the concluded contract and introducing additional remuneration for the Contractor, which may significantly (or at least slightly) contribute to the profitability of the contract. Although all cases of unreliability in this respect (such as fictitious services or inflated measurements) need to be ruled out, there are no obstacles to taking advantage of e.g. market-based unit rates when calculating the remuneration. Notably, under the transitional provisions accompanying the amendment of 2016, the possibility of introducing an amendment also applies to contracts concluded for earlier orders.
Among these, particularly important are all kinds of inaccuracies (or even errors) in the provided documentation. They can also be the basis for a request to amend the contract, excluding only cases whose type and (severe) nature make it impossible for them to be explained by unforeseeable consequences.
In this case, however, the actions of the participants in the investment process obtain, apart from the legal context, also another context, namely a “political” one, as every mistake has its agent and a number of people who, perhaps, should have noticed the error earlier. In such cases, contractors are advised to prepare an appropriate, reasonable and careful proposal of amending the contract. Hence, not only the proper distribution of emphasis needs to be considered, but also an appropriate “tactical” preparation has to be undertaken. In such situations, professional and emotion-free support is priceless.
Legal adviser Bartosz Brzezina