Prawo Zamówień Publicznych
nr 2/2021
Making Changes to the Subject of a Public Contract
prof. University of Wrocław; ORCID: 0000-0003-3062-6015.
Abstrakt
Introduction
In line with the basic principles of equal treatment, protection of competition and public procurement openness, further rules concerning the implementation of public procurement contracts, including the limits of their permissible modification, have been developed in Polish law1 and national judicature, clearly influenced by European directives and EU jurisprudence. These rules are largely aimed at protecting the outcome of the procurement procedure and at ensuring sufficient competition on the public procurement market, as well as at the protection of public interests. Consequently, they justify clear limitations in the admissibility of modifying public procurement contracts, as compared to the freedom to modify civil law contracts. As a result of introducing stringent restrictions in the directives of 20142, mainly regarding substantive changes, there was undoubtedly a better specification of the permissible modifications3. However, the currently applicable limits and rules still “limit” the permissible changes to contracts, perceiving them in terms of exceptions to the essential invariability of the content public procurement in the course of its implementation. On the other hand, the extended scope of influence of the prevailing principles of equal treatment and competition protection, to also include the stage of contract performance, leads to the conclusion that, in the field of public procurement, the traditional principles of actual performance of contractual obligations and pacta sunt servanda have been significantly strengthened. In addition, the public-law obligation to pursue claims, including non-pecuniary contractual claims for the proper performance of contractors’ obligations, affects the limitations on the possibility to amend contractual provisions.This article presents only the modifications to contracts allowed under Article 455 sec. 1 item 3 and sec. 2 of the Public Procurement Act of 11 September 20194, i.e. changes including an additional subject of the contract and minor modifications justified by a small scope of reference and a low value of financial consequences. Although these do not exhaust the entire issue concerning the admissibility of objectively significant changes, the limitations on the subject matter of the considerations was dictated by the greater scale of difficulties combined with a range of interpretation problems of theoretical and practical significance, compared to the better-known premises for changes justified by adaptation clauses or forced by unforeseeable circumstances (Article 455 sec, 1 items 1 and 4 of the PPA).
