Abstract

The presence of prohibited contractual clauses tends to discourage contractors from participating in public procurement procedures. It was possible to challenge such clauses even before the introduction of Article 433 of the Public Procurement Law as, on the basis of the 2004 PPL, the National Appeals Chamber , relying on the provisions of the Civil Code, ruled on the irregularity of contractual provisions transferring excessive contractual risk to contractors. However, it has undoubtedly become easier for contractors to assert their rights now. An analysis of the current case law indicates that contractors are making skilful use of this institution and there are currently no grounds to conclude that the current closed catalogue of prohibited clauses needs to be expanded or opened up. On the other hand, given that public procurement contracts are concluded to meet public needs, they should be concluded on the principle of the durability of the contract and a guarantee of performance of the contract awarded. This means that any provisions allowing for the possibility to limit the scope of performance in relation to the contract described in the procurement documentation must take into account the principles governing the possibility to amend the contract.