Prawo Zamówień Publicznych
nr 1/2022
The conditions for adjusting the remuneration of a public procurement contractor under Polish law
Professor in the Institute of Law at the Cracow University of Economics attorney-at-law; ORCID: 2-1364-3772.
Abstrakt
General issues
The pacta sunt servanda principle and the related principle of the actual performance of the contract mean that it is not possible to make any major revisions of a final public procurement contract. There are two more conditions that are significant – the European requirement to preserve the effects (result) of a tender or other procedure under the principles of transparency, equality and fair competition, and the protection of the public interest, expressed through the obligation on the contracting authority to pursue claims. It is also necessary to take into account the principle of nominalism, according to which the subject of a contract is a sum of money from its very inception. The performance is rendered through the payment of a nominal sum unless otherwise stipulated in the law or a contractual reservation (Article 3581 § 1 of the Civil Code).This means that neither a change in the purchasing power of money nor an increase in the costs of implementing a non-cash benefit generally affect the amount of the pecuniary obligation performed by paying the nominal amount. Therefore, both parties bear a contractual risk in connection with potential unexpected circumstances. In particular, while the contractor risks the negative consequences of a possible increase in construction costs, the contracting authority risks the negative consequences of the savings solutions used, or a decrease in market prices for materials and other construction expenditures.There are various causes of market fluctuations, depending on such issues as unstable fiscal solutions, various disturbances in trade in supply chains, restrictions caused by a pandemic, a state of natural disaster, war, etc. The subjective circumstances for which the parties to the contract are responsible, which in practice most often result in difficulties in implementation and the resulting increase of costs, do not count at all.Only the risk of a “glaring loss” justifies bringing an action under Article 3571 § 1 of the Civil Code for a judicial correction of a financial obligation, or even the complete termination of the contract (rebus sic stantibus clause).This all means that the contractor cannot resort to unacceptable savings, postponing the completion of the contract, demanding the contracting authority’s consent to limit the scope of the service, or abandoning the contract. The contractor has to perform its obligations in full and within the agreed time limit; it cannot demand that the contracting authority pay higher remuneration, unless it has a legal right to do so resulting from a specific provision (very rarely) or from a prior contractual reservation). Under traditional assumption, it cannot count on a revision of the provisions of the contract due to the consequences of the pacta sunt servanda principle, especially in terms of the equivalence of benefits, as long as the circumstances known to the parties at the time of concluding the contract persist. Therefore, in relation to foreseeable circumstances, even if only as a probability counting towards the assumed period of performing the obligation, the parties should establish an appropriate adjustment mechanism in advance, in the contract, allowing for the possibility of a specific modification of the contractual provisions, or for exercising the right of a quantitative option, or other, related to the selected item of procurement.However, in the event of an extraordinary change of circumstances that could not have been foreseen in advance, it is possible to refer to circumstances that are subjectively unforeseeable in terms of Article 455 paragraph 1 point 4 of the Public Procurement Law of 11 September 2020,1 and as a last resort, bring legal action under Article 3571 § 1 of the Civil Code. The scope of application of these two provisions is fundamentally divergent. They are in a relationship appropriate to the lex specialis derogat legi generali. The first provisions regulates the admissibility of the parties themselves changing the contract, while the second authorises the court to interfere with the performance of the contract, especially in the event that the parties fail to reach a satisfactory agreement. From this point of view, Article 455 paragraph 1 point 4 of the Public Procurement Law raises doubts about the basis for adjusting the contractor’s remuneration, because a modification of a non-cash benefit that will not “increase the price by more than 50% of the original contract value” is taken into account. However, a wider interpretation of this provision can be applied, if it is assumed explicitly that only an increase in remuneration is permissible, in isolation from other (objective) elements of the obligation. This is an interpretation that could be given more importance by the Supreme Court on the basis of a relevant directional resolutionA meaningful reference to the general Article 3571 § 1 of the Civil Code can only be associated with extremely exceptional situations, when either the modification of the contract by the parties themselves is not allowed at all, or negotiations between the parties did not produce any results.In public procurement, however, it is not possible to apply Article 3581 § 3 of the Civil Code, which provides for a judicial valorisation of the contractor’s remuneration due to a decrease in the purchasing power of money, since contractors are not permitted to submit such a demand. In light of the above, the adaptation clauses included in public procurement contracts, specifying the conditions for introducing specific modifications of the obligation in the event of a change in the circumstances affecting its implementation, are of great practical importance.
