Abstract

The Public Procurement Law Act of 29 January 2004 was amended in December of 2013. The introduction of new provisions regulating the subcontracting issue has resulted in many concerns and doubts arising both in the doctrine and in practice as to the relationship between the existing and so far applicable provisions of the Civil Code which describe the contract for construction works and the new Public Procurement Law Act. Having assumed that these regulations are not in conflict but are complementary and that they should be used jointly, the article analyses the issues that raise the biggest concerns. In the first place, the relationship between the general principles of the new Public Procurement Law Act and the Civil Code have been analysed, in particular in the context of public procurement contracts. Further on, the definition of a subcontract, which was introduced by the amendment of December 2013, has been examined in relation to the concept of „subcontracting” formulated on the basis of the provisions of the Civil Code, including the provisions of Art. 647¹ of the Civil Code.

Subsequent considerations concern the nature of the legal norms described in Art. 143d of the Public procurement Law, which introduce mandatory elements of a construction work contract in the context ofessentailia negotiiof construction work contracts referred to Art. 647 of the Civil Code and the issue of differences between the procedures for approval of subcontractors laid down in the Public Procurement Law and the Civil Code, as well as differences between the effects of those procedures. This issue focuses on the consent of the investor/the contracting authority for the conclusion of the contract by the contractor, and specifically the timing of such consent, its form, how a subcontractor is to be approved and the deadline for submitting objections. Later on in the article, the problem of the relationship between the institution of direct payment described in Art. 143c of the Public Procurement Law, introduced by the amendment of December 2013 and Art. 647¹ § 5 of the Civil Code, which provides for the joint and several liability of the investor and the contractor vis-a-vis the subcontractor. The discussion of those issues basing on the adopted assumption has shown that there is no conflict between the provisions of the Public Procurement Law and the Civil Code with respect to subcontracting in public procurement and has confirmed that the provisions of the Public Procurement Law are complementary to the provisions of the Civil Code.