dr Hanna Drynkorn | In Principle

One of the participants in the construction process carried out under FIDIC contract terms is the engineer, acting as the contract administrator. The engineer’s task is to take the necessary steps to ensure that the contract is performed correctly and on time. Among other things, the engineer can issue a determination on how to handle a matter. When can the engineer do this?

Contractors often take advantage of their stronger negotiating position by imposing terms in subcontracts. The new Public Procurement Law includes Art. 463 to protect subcontractors from unfairly framed contractual obligations. Will subcontractors benefit from the new regulation?

If tax arrears are a ground for exclusion under the procurement documentation, exclusion can be prevented by making payment or entering into an agreement with the tax authority. It is worth considering whether providing voluntary security would be an effective way to prevent exclusion.

Despite its similar function, the general contractor’s retention of a portion of a subcontractor’s fee to secure its own claims cannot be equated with a security deposit. Consequently, the investor is jointly and severally liable for payment of such amounts to the subcontractor.

As a result of the pandemic, many planned and existing contracts have been paralysed. The uncertain situation forces the parties to cease performing contracts or at least poses barriers to performance. In this situation, can they change the contract? Will they have to pay contractual penalties and damages? The situation now looks somewhat different than it did at the start of the pandemic.

As a result of the pandemic, many planned and existing contracts have been paralysed. The uncertain situation forces the parties to cease performing contracts or at least poses barriers to performance. In this situation, can they change the contract? Will they have to pay contractual penalties and damages? The Anti-Crisis Act comes to their aid.

The Public Procurement Law provides for rules autonomous from the Civil Code for settlements with subcontractors. The regulations apply independently of each other, but they are applied in parallel to contracts concluded under the public procurement regime.

The draft of the new Public Procurement Law can be called a revolution, if only because the law has never before addressed to such a degree the content of the contract. Although the draft needs to be fine-tuned, it already provides a number of appropriate solutions.

Not all claims relating to performance of a contract are subject to clause 20.1. This clause provides for a severe penalty of expiry of a claim for not giving notice of a claim within 28 days. Above all, most claims for adjustment of pay are not covered by this clause.

When the investor suffers damage, it is not necessary to find out who contributed to it and to what extent. The damage can be redressed by all entities responsible for its creation, even if they took part in the construction process in different roles and on a different basis.

The unique characteristics of public procurements should not impede a balanced allocation of risks between the parties. However, despite efforts by various groups this goal has remained unattainable. The drafters of the new Public Procurement Law have recognised the problems related to the parties’ unequal positions and proposed several remedies.

Notice of a claim is not a sign of hostility towards the other party to a contract. The major changes made in the FIDIC New Contract Conditions published in December 2017 include a clear distinction between claims and dispute resolution.