Abstract

Amendments of the public procurement contracts were not regulated by EU directives before 2014. Although, in specific cases, the Tribunal allowed such changes, the principles of the EU law were not reflected in national legislations.

At present, in both EU directives and the Polish Public Procurtement Law changes in contracts are regulated basing on case-law. Acceptable changes are divided into several categories. First of all - irrelevant changes are always acceptable. An irrelevant change means that no new important provisions are introduced to the contract, which if known during the tender would attract the interest of other tenderers. Additionally, such changes do not create any privileges for the contractor vis-à-vis the contracting authority.

Secondly, changes indicated explicitly in the documentation of the procedure are acceptable. Thirdly - changes provided by law are allowed and they need not be indicated in the contract. These are first of all low-value changes, as well as changes extending the scope of the contract to the services needed to perform it or benefits the necessity of which had been impossible to predict.

The new provisions contain a relatively detailed list of circumstances in which the contractor may by changed, namely those that arise directly from the law (general succession, division of a company, sale of an enterprise, restructuring, taking over by the contracting party the commitments of the existing contractor to subcontractors), or from the provisions of the contract presented in the documentation of the procedure for awarding a public contract. These changes should be accompanied by the obligation to verify the ability of the new contractor to perform that part contract which remains to be performed after the contractor has been changed, as well as the prohibition of significant changes to the subject of the contract caused by the change of the contractor.