Shield 2.0 and public procurement
The existing regulations have allowed the contracting parties to react to the circumstances caused by the corona virus pandemic.
The key regulation in this regard is art. 15r of the Act of 2 March 2020 on Special Solutions Involving Preventing, Counteracting and Combating COVID-19, Other Contagious Diseases and the Crisis Caused by Them [“Anti-crisis Act”]. The said provision confirms that the corona virus pandemic is the circumstance which may justify changing the public procurement contract, specifically by:
- Changing the date of performance of the contract or a part thereof, or temporary suspension of performance of the contract or a part thereof;
- Changing the manner of providing supplies, services or construction works;
- Changing the scope of contractor’s performance and corresponding changing of contractor’s remuneration
Changing the contract should be preceded by the public procurement contract parties’ notice of an impact of the COVID-19 situation on due performance of the contract and by an agreed position as to the impact of those changes on the contract. The Anti-crisis Act excludes the responsibility arising from infringement of the principles of public finance discipline, criminal liability and the liability of members of companies’ bodies in the event of change of a public procurement contract made in accordance with art. 15r item 4 of the Anti-crisis Act (Anti-crisis Act articles 15s – 15u).
The amendments named Shield 2.0 have introduced further changes in the regulations concerning public procurement:
- The catalogue of the circumstances having an impact on performance of a public procurement contract is open, with the requirement that such circumstances must render it impossible or limited to perform the contract to a significant extent. Hence, it is not sufficient to indicate just any impact of the corona virus epidemic on the contract performance. The impact in question must be significant. From the point of view of the procurer and the contractor it is important that the change will not involve the changes in the contracts made before the Shield has become effective and if any changes in contracts have been made before that time, the so far existing regulations should be applied to their estimation;
- Changing the contract may involve not only a change in the amount of consideration but also modification of the manner of settlement of the contractor’s consideration. The regulation enables moving the dates of payments, also setting earlier ones. Such a solution may give the entities performing public procurement tasks the chance to achieving financial liquidity necessary for surviving the period of “hibernation”;
- Contracts that could be changed exclusively in the written form (otherwise being null and void) may, upon consent of the procurer, be also executed in the electronic form with qualified electronic signature. This change dispels any possible doubts concerning the applicability of the Civil Code art. 781 paragraph 2, under which a declaration of intent made in the electronic form is equivalent to a declaration of intent made in the written form.
It should be underlined that neither Shield 2.0 nor the earlier Anti-crisis Act introduces the duty to change the contract made in connection with performance of a public procurement. Both the task of estimation of the corona virus impact on performance of the contract and the task of indication of possible scope of changes have been left to the procurer and contractor. It seems the legislator only advertises making a reasonable estimation of the situation and undertaking a co-operation in putting to minimum the consequences of the corona virus pandemic through measures being least devastating for both parties.
managing associate, adwokat