The Act of 7 October 2022 amending certain laws to simplify administrative procedures for citizens and entrepreneurs in Article 44 introduced in the Act of 11 September 2019. – Public Procurement Law (PPL) with two fundamental amendments, which entered into force on 10 November 2022. The amendment relates to Articles 439 and 455 PPL.
Article 439 PPL stipulates that an obligatory element of a public procurement contract are provisions on the rules of introducing changes to the amount of remuneration of the contractor in the event of a change in the price of materials or costs related to the performance of the contract. Initially, this provision concerned only contracts for construction works and services concluded for a period longer than 12 months. The amending act shortened this period to six months and included supply contracts under the valorisation obligation.
Thus, in all contracts concluded in the public procurement procedure and which duration exceeds six months, it is necessary to introduce provisions introducing the rules of making changes to the amount of the contractor’s remuneration in the event of a change in the price of materials or costs related to the performance of the contract. Such an agreement shall specify:
1) the level of change in the price of materials or costs entitling the parties to the contract to demand a change in remuneration and the initial date for determining the change in remuneration;
2) the method of determining the change in remuneration:
(a) with a reference to the index of change in the price of materials or costs, in particular the index announced in the communiqué of the President of the Central Statistical Office, or
b) by indicating another basis, in particular a list of types of materials or costs for which a price change entitles the contractual parties to demand a change in remuneration;
3) the manner of determining the impact of a change in the price of materials or costs on the cost of performance of the contract and determination of the periods in which the change in the contractor’s remuneration may occur;
4) the maximum value of the change in the remuneration which the ordering party allows as a result of the application of the provisions on the principles of introducing changes to the amount of remuneration.
The amendment to Article 455 para. 1 pt. 4 PPL clarified that if the need to amend the contract, including in particular a change in the amount of the price, is caused by circumstances that the ordering party, acting with due diligence, could not have foreseen, provided that the amendment does not modify the general nature of the contract and the price increase caused by each subsequent amendment does not exceed 50% of the value of the original contract. In this context, the Polish legislator is in line with the provisions of recital 109 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement, according to which contracting authorities may encounter external circumstances that they could not have foreseen at the time of awarding the contract, in particular when the contract is performed over a longer period of time. In such a case, a certain degree of flexibility is necessary to adapt the contract to these circumstances without the need for a new procurement procedure.