Abstract

The article attempts to determine possible grounds for the awarding entity’s and the contractor’s withdrawal from a construction works contract performed under the public procurement regime. Those grounds are to be found not only in the Public Procurement Law, but also the Civil Code and other legal acts.

The way in which the termination of contract provisions of procurement directives have been implemented in the Polish public procurement system continues to arouse numerous interpretational doubts as regards withdrawal from construction works contracts. An ambiguous relationship between withdrawal and notice of termination in the area of the traditional civil law doctrine translates into similar difficulties in public procurement, which is augmented by the fact that the legislator has omitted certain structural elements of the awarding entity’s right to withdraw from a contract. Despite the silence of the legislator, free conclusion by the awarding entity and the contractor of agreements terminating construction works contracts under public procurement and entering clauses setting the contractual right to withdraw by any of the contracting parties should be consider impermissible.

Apart from the regulations of the Public Procurement Law, also the provisions of the Civil Code and other legislative acts authorize the awarding entity or the contractor to withdraw from a construction work contract in the course of its performance. From the viewpoint of the former, such a right shall arise in case of any delays on the part of the contractor, the contractor’s declared refusal to perform, ex-post impossibility of the contractor to perform, a significant increase of estimated remuneration and defective performance of works. However, it is impermissible for the awarding entity to withdraw from the contract without reason upon payment of entire remuneration. From the viewpoint of the contractor, withdrawal may be justified by delayed performance of the awarding entity, ex-post impossibility of the awarding entity to perform, no cooperation on the part of the awarding entity, no guarantee of payment, the right of option in insolvency proceedings and – rather exceptionally – overly prolonged deadline for payment.