The Act of September 11, 2019, Public Procurement Law, which will enter into force on January 1, 2021, introduces new, revolutionary solutions in the field of contracts concluded as a result of the award of a public procurement procedure. The main purpose of the changes concerning contracts is to limit the unilateral shaping of contract provisions by awarding entities. To this end, the new Act provides:

    1. abusive clauses, i.e. provisions that the Contracting Authority may not include in contracts – these clauses are listed in Art. 433 of the new act. The proposed contract provisions may not provide for:

      • the contractor’s liability for delay, unless it is justified by the circumstances or the scope of the contract;
      • charging contractual penalties for the contractor’s behavior not related directly or indirectly to the subject of the contract or its proper performance;
      • the contractor’s liability for circumstances for which the contracting authority is solely responsible;
      • the possibility of limiting the scope of the contract by the contracting authority without indicating the minimum value or volume of the provision of the parties.
    2. introducing provisions that must be included in contracts. In Art. 436 of the draft act, the provisions which should be obligatorily included in each contract, such as the date of its performance and payment conditions or the limitation of contractual penalties, are indicated. The new solution is a clear obligation for contracting authorities to specify the term of contract performance, in units of time (days, weeks, years).

    3. mandatory clauses regarding the change in the amount of remuneration;

      The Art. 439 paragraph 1 of the Act introduces an obligation to include in a contract the subject of which are construction works or services, concluded for a period longer than 12 months, provisions on the principles of changing the amount of remuneration due to the contractor in the event of changes in the prices of materials or costs related to the performance of the contract. According to Art. 439 the contract specifies:

      • the level of change in the price of materials or costs referred to in paragraph 1, entitling the parties to the contract to request a change in remuneration and the initial date of determining the change in remuneration;

      • the method of determining the change in remuneration:

        • with the use of a reference to the index of changes in the price of materials or costs, in particular the index announced in the announcement of the President of the Central Statistical Office or
        • by indicating another basis, in particular a list of types of materials or costs, for which a change in price entitles the parties to the contract to demand a change in remuneration;
    4. the method of determining the impact of a change in the price of materials or costs on the cost of performing the contract and specifying the periods in which the contractor’s remuneration may be changed;

    5. the maximum value of a change in remuneration that is allowed by the contracting authority as a result of applying the provisions on the principles of introducing changes to the amount of remuneration.