High and ever-increasing inflation, supply shortages and the war in Ukraine are causing a very difficult and extraordinary situation for contractors executing contracts under the public procurement regime. Therefore, an official line of the General Counsel to the Republic of Poland on the possibility of special valorisation was issued.
In its recommendations, the General Counsel supported the position of the Public Procurement Office. It confirmed the occurrence of unprecedented economic phenomena that contractors could not foresee. In the Prosecutor’s Office’s opinion:
„In such extraordinary circumstances, the use of mechanisms for valorisation of remuneration is justified and even necessary in many cases.”
In the context of amendment of a contract, according to the General Counsel, the suggested legal basis to be taken into account is primarily the prerequisites provided for in Article 455(1)(4) of the current Public Procurement Law, i.e. invoking circumstances that the commissioning party, even acting with due diligence, could not have foreseen.
The position of the General Counsel also points to the possibility of amending the contract based on the provisions of the Civil Code (Article 3571 of the Civil Code or Article 632 § 2 of the Civil Code). In this case, it is emphasised that there is no obstacle for the parties to take into account the code prerequisites through the conclusion of an annex, that is, without the need to enter into a court dispute. This is an extremely important position in practice. So far, involvement of a court of law was the only way for introducing changes on these grounds for many commissioning parties.
Also worth noting are the ways of possible contract amendment suggested by the General Counsel. Thus, an amendment to the contract may, depending on the circumstances of a particular case, take the form not only of a change in the amount of remuneration, but also the introduction of a valorisation clause into the contract, or an amendment to the existing valorisation clause, e.g. by increasing the previously adopted valorisation limit.
