Abstract

The article analyses the impact of crises over recent years (the Covid-19 epidemic, Russia’s attack on Ukraine, and related economic conditions) on remuneration issues in public procurement. Due to inflation, a contractual equilibrium that should exemplify this area of the economy can easily be breached. The paper focuses on changes to the legal status introduced as of 10 November 2022. The amendment to the Public Procurement Law brought significant solutions, both of permanent in nature (e.g. Article 455 Paragraph 1 item 4 of the Public Procurement Law, which now explicitly provides for the grounds for a price adjustment) and those of an ad hoc nature (e.g. Article 48 Paragraph 1 of the Amendment Act assuming the admissibility of introducing modifications to a procurement contract ex-post to pending contracts).

Adaptation clauses are an important basis for the indexation of contractual benefits. This notion encompasses various constructions, all of them performing similar functions, with their common element being the allocation of the risk of a change in circumstances. In the public procurement system, it is important to distinguish two basic types of adaptation clauses, depending on the source of their introduction to the contractual relationship. The first type is optional clauses introduced pursuant to Article 455 Paragraph 1 Item 1 of the Public Procurement Law and the general principle of freedom of contract under Article 353¹ of the Civil Code. The second type is mandatory clauses, namely Article 436 Paragraph 4b) and Article 439 of the Public Procurement Law. The law also allows for the possibility of modification in the face of unforeseen circumstances not included in the adaptation clauses - Article 455 Paragraph 1 point 4 of the Public Procurement Law - which since the 2022 amendment emphasises that such circumstances can also be the basis of a price adjustment.

The 2022 amendment also allows for adjusting previously concluded contracts, namely contracts in progress, even though they did not provide for the parties introducing adaptation clauses. The practical significance of the new provision is quite high, despite its episodic nature. This is mainly because it may apply to the vast majority of previously concluded contracts that are currently underway.

A contemporary tendency is to invoke the rebus sic stantibus clause (Article 3571 of the Civil Code) in order to adjust the remuneration amount. Although, in principle, this clause is not intended as an instrument of indexation, in recent times the restoration of contractual equilibrium is most often understood as an adjustment of the contractor’s remuneration, meaning that it has become a de facto basis for such an adjustment of remuneration. This is even more the case because, in the area of public procurement, judicial indexation according to the Civil Code cannot have any practical significance, due to the exclusion contained in Article 3581 Paragraph 4 of the Civil Code whereby a party running an enterprise cannot make an indexation demand.