A contractor’s experience means work actually done with the contractor’s involvement: A controversial ruling?
The Court of Justice held in Esaprojekt sp. z o.o. v Województwo Łódzkie (Case C-387/14) that a contractor entering a tender individually cannot rely on the experience of a group of contractors it was a member of in performing another public contract if the contractor was not actively and specifically involved in performance of the contract. The ruling, issued in the context of a Polish tender, is widely regarded in Poland as controversial. But is the conclusion by the Court of Justice requiring experience to be based on actual experience really debatable?
There has been a great divergence in interpretation of the grounds for retention of bid bonds. A recent resolution by the Supreme Court should unify the practice of contracting authorities on this issue. But the justification for the resolution itself admits certain exceptions from the obligation to retain the bid bond, even when the documents submitted by the contractor fail to confirm fulfilment of the requirements of the tender.
In public procurement procedures, contractors are often called on to justify the price they offer. If the explanation is too general or imprecise, the offer can be rejected.
The “Creditors’ Package,” an overhaul of numerous acts, entered into force on 1 June 2017. Among other changes, it authorises public finance units to conclude settlements when certain conditions are fulfilled. This creates the hope for a more flexible attitude of public entities, open to dialogue with the private sector. But will this actually be achieved?
The regulation on retention of a contractor’s bid bond has not uniformly interpreted. Two different views have developed in the case law and the legal literature on the situations when the contracting authority can apply this sanction.
The joint and several liability of the investor on a construction project for the fees of the subcontractors under Polish law is particularly strict. Thus owners of construction projects should note the statutory solutions (recourse claims by investors and limitations in subject matter and amount introduced in the amended Civil Code) and the permissible use of contractual clauses to soften this liability regime.