infrastructure | In Principle

This year’s amendment of the Waste Act is forcing changes in the scheduling of incinerator projects. Target load start-up tests must be postponed until after the integrated permit is issued. This may give rise to claims by contractors for prolonging the project completion period because of a change in the law.

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.

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.

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.

On 14 June 2011 the Polish government approved a bill to amend the Rail Transport Act in order to provide for automatic admission of rail vehicles for operation in Poland if they have been admitted for operation in another EU member state.

One of the reasons that FIDIC terms are so popular for construction contracts is the well-developed set of dispute resolution procedures.