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FIDIC: In what situations can the contract engineer issue a determination?
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?
FIDIC: In what situations can the contract engineer issue a determination?
A sudden return to deducting contractual penalties in public procurement
On 24 August 2022, without any grace period, Art. 15r1 of the COVID special act ceased to apply. In Polish public procurement, this means a repeal of the ban on deducting contractual penalties and claiming them from a performance bond, which had been in effect since 24 June 2020.
A sudden return to deducting contractual penalties in public procurement
Mandatory site visit as a means to obtain better bids
The contracting authority may require contractors to conduct a site visit when justified by the subject matter of the contract. Failure to participate in an obligatory site visit will result in rejection of a bid. Contractors who do not manage to attend the site visit should request a new date for the visit before submitting a bid.
Mandatory site visit as a means to obtain better bids
When indexation of contractual fees is not enough
What can a public procurement contractor do if contractual indexation does not make the amount of the contractual fee realistic, or if no indexation clause is provided for in the contract? In such a case, is modification of the contract an obligation or a right of the contracting authority?
When indexation of contractual fees is not enough
When (part of) a consortium wants to go to court
For many years, the consortium has been a familiar form of cooperation between businesses pursuing public contracts. But this construction still raises legal questions, especially when a dispute arises and goes to court. Because this structure is deceptively similar to an ordinary partnership, sometimes it is unclear which members of a consortium may participate in court proceedings. The Supreme Court of Poland examined this issue in its judgment of 30 June 2021 (case no. III CSKP 75/21).
When (part of) a consortium wants to go to court
Tales from the National Appeal Chamber: Validity of bid bond vs. bid validity period
As the host of the procedure, in the contract documentation the contracting authority should specify the formal and technical requirements for a bid bond. In some procurement procedures, the contracting authority requires contractors to submit a bid bond with a validity extending beyond the bid validity period. In a recently issued ruling, the National Appeal Chamber opined on whether such provisions of the terms of reference are permissible, or are invalid by virtue of law (case no. KIO 3482/21).
Tales from the National Appeal Chamber: Validity of bid bond vs. bid validity period
Russian contractors barred from Polish public procurement
Until the end of April, contracting authorities in Poland have time to add to their procurement documentation and competition terms and conditions new mandatory grounds for exclusion of contractors included in the sanctions list or whose beneficial owner or parent company is on the list.
Russian contractors barred from Polish public procurement
Construction market when there is a war abroad
The construction market is facing more challenges. After many problems associated with the pandemic, other major difficulties have arisen due to Russia’s war on Ukraine. This presents the second recent case of force majeure affecting the economy. Although the construction sector did well in the pandemic crisis, this time the outlook is much more pessimistic. Thus the new reality requires a rapid response and search for solutions to mitigate numerous risks.
Construction market when there is a war abroad
A contractual penalty in public procurement is not damages
The Public Procurement Law of 11 September 2019 improperly implements the exclusion ground for improper performance of a former contract, as it ignores the specifics of the Polish public procurement market. This error can be corrected by a legislative change or by a pro-EU interpretation of the existing law.
A contractual penalty in public procurement is not damages
Tales from the National Appeal Chamber: How to explain a bid price when requested by the contracting authority?
A contractor is obliged to calculate the bid price fairly and factor in everything that follows from the terms of reference, including typical risks associated with contract performance, so that the bid is realistic and allows for proper performance of the contract. If the bid price appears abnormally low or is otherwise questionable, the contractor must explain it in detail.
Tales from the National Appeal Chamber: How to explain a bid price when requested by the contracting authority?
The public procurement market doesn’t need a special act for Covid or the Ukraine crisis
Special acts introduced in isolation from existing solutions distort good law. This can be seen in how the public procurement market in Poland has been affected by successive amendments to the Covid Special Act. Today a special act is unnecessary, and force majeure provisions will suffice. Instead, it would be useful to amend the provision governing claims for a change in the amount or method of payment for public contracts.
The public procurement market doesn’t need a special act for Covid or the Ukraine crisis
Tales from the National Appeal Chamber: A contest entry inconsistent with the Public Procurement Law or the contest rules will not be considered
The purpose for stating the projected execution costs in the rules for a contest is for contestants to be aware of the contracting authority’s financial capabilities. Contestants should take this value into account when preparing their entries, or their entry will not be considered by the contest jury, the National Appeal Chamber held in its ruling of 10 January 2022 (KIO 3624/21).
Tales from the National Appeal Chamber: A contest entry inconsistent with the Public Procurement Law or the contest rules will not be considered