Małgorzata Cyrul-Karpińska | In Principle

In practice, the parties often refer to any contract for a construction project as a construction contract. But many such contracts are not actually “contracts for construction work,” but “contracts for a specific work.”

Suspension and resumption of construction work are key concepts in the FIDIC Red Book. They are not directly addressed in Polish law but permissible under the principle of freedom of contract. In practice, when the FIDIC terms are used in Poland, these clauses are often modified to shift the risk of their application onto the contractor.

Under some circumstances, questioning the terms of reference in a tender may be treated not only as a right but as an obligation of a professional contractor.

Because it is a right under public law, the investor for a construction project can demand supervision by the designer regardless of the contractual provisions.

In contracts, the precise formulation of deadlines and the need for one or both parties to comply with them can prevent surprises in the form of an obligation to take early delivery or make early payment.

Liability to the contracting authority for payment of subcontractors’ fees is borne by all members of a consortium—even if the subcontract was signed with just one of the members. Amendments to the Public Procurement Law have reinforced this rule.

The Supreme Administrative Court of Poland has made it clear that the administrative courts cannot review the road authority’s refusal to recognise a subcontractor’s claim for payment under the “special act.” The subcontractor’s claim may be pursued instead through the civil courts.

Subcontractors for road projects in Poland may still seek payment from the General Directorate for National Roads and Motorways (GDDKiA) under a special act of Parliament from 2012. A recent amendment to the special act allows subcontractors which are large enterprises to seek payment from GDDKiA under the same terms as SMEs.

With the entry into force of the amendment to the “special act” on 16 July 2014, large subcontractors will be able to seek payment from the General Directorate for National Roads and Motorways of their unsatisfied principal claims for performance of public road construction projects.

Subcontractors for road projects in Poland can still use the “special act” to seek payment from the national road authority. This opportunity is also to be extended to “large subcontractors” for claims related to performance of certain road construction contracts.

The content of a procurement subcontract is shaped not only by the intent of the parties, but also by the Public Procurement Law, the Civil Code, the terms of reference for the procurement, and the actions taken by the contracting authority.