dr Hanna Drynkorn | In Principle

A new edition of the suite of FIDIC contracts was published during the International FIDIC Users’ Conference in London on 5 December 2017. The publication includes new approaches to issues such as filing claims and procedural aspects of the engineer’s role in their evaluation.

There has been a great divergence in interpretation of the grounds for retention of bid bonds. A recent resolution by the Supreme Court should unify the practice of contracting authorities on this issue. But the justification for the resolution itself admits certain exceptions from the obligation to retain the bid bond, even when the documents submitted by the contractor fail to confirm fulfilment of the requirements of the tender.

The regulation on retention of a contractor’s bid bond has not uniformly interpreted. Two different views have developed in the case law and the legal literature on the situations when the contracting authority can apply this sanction.

Contractors initially declare that they meet the conditions for participating in a procurement, and at a later stage submit confirming documents. This rule applies to all modes for awarding public contracts, but the law provides for certain exceptions.

The Act on Concession Contracts for Construction Works or Services of 21 October 2016 was signed by the President of Poland and published on 29 November. The act entered into force on 14 December.

The long-awaited amendment of Poland’s Public Procurement Law was published on 13 July 2016. Most of the new regulations enter into force after a 14-day grace period, i.e. on 28 July 2016. But the effectiveness of some of the changes is postponed because of the need to prepare for their entry into force. And certain issues will continue to be governed by the prior rules.

The proposed amendment to the Public Procurement Law would introduce grounds for excluding contractors not previously recognised under Polish law, but would also expressly depart from the existing restrictive approach to exclusion of contractors. The “self-cleaning” procedure and the optional nature of certain grounds are new solutions.

The proposed amendment of the Public Procurement Law, despite introducing certain changes in the rules for participation by third parties in performance of public contracts, does not resolve all doubts concerning the existing practice. For some of them, it would be helpful to consult the guidelines from a recent judgment of the Court of Justice.

The nature of the resources that can be presented in a tender to demonstrate a contractor’s economic capacity raises doubts concerning the permissible forms in which economic capacity can be realistically shared. But the latest case law shows that there are actually many different ways for a contractor to make use of the economic capacity of another entity.

The construction industry rightfully tries to limit modifications to the FIDIC general conditions to essential issues. One of them is the rules for the contractor’s liability for defects in the structure. Failure to address this in the particular conditions can lead to disputes.

In complicated construction projects, the amount the contracting authority must ultimately pay the contractor in the final settlement is often higher than the originally agreed fee. The final amount will largely depend on the allocation of risks between the parties to the contract.

The Public Procurement Law does not outright ban an entity from taking part in the same procurement proceeding as the general contractor and as a subcontractor for another bidder. But under certain circumstances this may be found to be impermissible and result in rejection of the offer.