Most of the amendments to the Public Procurement
Law Act of 29 January 2004 (the “PPL”), as
provided for in the Act amending the Public
Procurement Law Act and certain other acts, dated
22 June 2016 (the “Amendment”), came into force
on 28 July 2016. One of its most interesting
elements of this Amendment, which can be called
truly revolutionary, are the new rules for modifying
already concluded public contracts.
The current Article 144 of the PPL, which remained
in effect until 28 July 2016, ruled out any
significant changes to be made to the provisions of
any previously signed contract in relation to the
contents of the tender, based on which the
contractor was selected, unless the contracting
authority provided for the possibility of such
modification in the contract notice or in the terms
of reference, and set out the conditions for
permitted changes. That wording led to difficulties
in interpreting the concept “significant change”
and made it necessary to specify, separately in
each case, in what circumstances and to what
extent it is possible to amend a public contract.
What is more, given the wording of Article 140 of
the PPL (not possible to extend the performance
beyond its scope defined in the tender), there were
serious doubts whether it was possible, for
example, to even minimally reduce the supply of
one product while increasing the scope of supply of
another product.
The new wording of Article 144 of the PPL indicates
that any changes in relation the contents of the
tender, and not just significant ones, are
prohibited, while providing for very important and
numerous exceptions to this rule.
First, any changes contemplated in the contract
notice or in Terms of Reference (ToR) and
expressed in clear contractual provisions that
define their scope (in particular, the possibility to
change the amount of remuneration of the
contractor) and nature, as well as the conditions
for introducing any changes, are allowed. Second,
permitted are amendments having to do with the
performance of additional supplies, services or
works by the same contractor when they are
necessary and it would be uneconomic, impractical, cause significant inconvenience or result in
unreasonable costs to change the contractor, and
provided that the value of each consecutive change
does not exceed 50% of the value of the contract.
Third, the content of the contract may be amended
if the need to change the same is due to
circumstances which the contractor, acting with
due diligence, could not have anticipated and the
value of such change does not exceed 50% of the
value of the contract as originally specified therein.
The Amendment also allows to change a party to
the contract, i.e. to replace the chosen economic
operator with another entity where the possibility
of such change is contemplated in the original
contract or in a situation where the contracting
authority assumes the operator’s obligations to
subcontractors. Changing the contract will be also
be permitted in the event of a merger, de-merger,
transformation, bankruptcy, restructuring or
acquisition of the current contractor or its business,
provided that the new contract meets the
conditions for participating in the procedure, no
reasons for excluding a specific contractor exist and
such change does not entail any other material
changes to the contract.
Yet another independent circumstance allowing for
the modification of the contract is any change the
value of which is less than the sums specified in the
regulations issued on the basis of Article 11(8) of
the PPL and which is lower than 10% or 15 % of the
value of the contract as originally specified in the
contract in the case of, respectively, a contract for
services or a supplies and works contract. Likewise,
this Amendment allows for any non-significant
changes to be made without any restriction, and
defines
“non-significant
change”
as
any
modification not affecting the general nature of the
contract or the framework agreement, relative to
the original wording of the same, and furthermore
not having any adverse effects such as a significant
change to the scope of performance, compromising
the economic equilibrium or the introduction of any
terms which, had they been imposed under the
procurement procedure, would result in the
participation, or could have resulted in the
participation, in the procedure of some other
economic operators or would have allowed for the
acceptance of a tender with different content.
It should be added that the new wording of Article
140 of the PPL does not preclude the scope of the
contractor’s performance to be modified by way of
an annex to the contract.
The new rules providing for the modification of
public contracts by annex should be regarded as a
positive development, despite that fact that some of them (such as the definition of significant
change) actually amount to nothing more but a
codification of the ruling practice of the European
Court of Justice. Particularly welcome is the
admissibility of modifying the scope of the
contractor’s performance by way of an annex, as
mentioned above. In special circumstances (as in
the case of large construction projects which have
failed abysmally as a result of the bankruptcy of
the general contractor) the possibility of changing
the person of the contractor and “replacing” it
with subcontractors can save important public
projects. The new wording of Articles 140 and 140
of the PPL will make it possible to loosen up the
rigid strictures that the PPL imposes on the
contracting authority and the economic operator
who are bound by the signed public contract.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Skarbowców 23a
53-125 Wrocław
Tel. +48 71 780-3100
Fax +48 71 780-3101
wroclaw@pl.millercanfield.com
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certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the basis of any
decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases.
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