| In Principle

W polskiej praktyce obrotu gospodarczego od dłuższego czasu budzi wątpliwości możliwość skutecznego wprowadzenia w umowach o roboty budowlane klauzul nakładających na jedną ze stron kontraktu obowiązek powiadomienia drugiej strony o okolicznościach uprawniających do żądania dodatkowej zapłaty za wynagrodzenie. Klauzule te wywodzą się z kontraktów zawieranych na wzorcach umownych FIDIC, opracowanych przez Międzynarodową Federację Inżynierów Konsultantów.

Sport is an important part of global civil society and it is best managed by that society’s institutions, in the form of non-government organizations of sufficient autonomy to be immune to the inherently corrupting political power of the state. But with freedom – with the “autonomy of sports” – comes responsibility.

On 24 January 2019, the Ministry of Entrepreneurship and Technology presented a draft of the new Public Procurement Law. The extensive new law is intended to simplify and streamline regulations so public procurement becomes more efficient and user-friendly.

The explanatory memorandum for the draft of the new Public Procurement Law indicates the need to increase the transparency and coherence of national regulations, recognising that the EU’s procurement directives have already been implemented in the Polish legal system. However, the effect of the “small amendment” of 2016 has been unsatisfactory from the very beginning. Hence, the draft contains a number of new solutions justified by the need to reflect the regulations of the procurement directives in the Polish act.

Chapter X of the draft new Public Procurement Law (Art. 620–655) obliges the contracting authority and the contractor to conduct a mandatory conciliation procedure. While the very idea of settlement of disputes deserves full support, the proposed detailed solutions raise serious doubts under the Polish Constitution and EU law.

One new procedure will replace the three most commonly used procurement procedures below the EU thresholds. The open bid will disappear, and the basic procedure without negotiations will appear. It is supposed to be easier and more flexible, but will it work?

The draft of the new Public Procurement Law, released by the Ministry of Entrepreneurship and Technology on 24 January 2019, proposes changes in the grounds for exclusion of contractors and institution for “self-cleaning,” bringing the Polish regulations closer to Directive 2014/24/EU.

In the proposed new Public Procurement Law, the contracting authority will decide on the obligation to submit a bid bond, regardless of the value of the contract. However, the same restrictive consequences as in the current act are linked with the improper submission of a bid bond, and there are more grounds for retaining bid bonds.

The draft of the new Public Procurement Law can be called a revolution, if only because the law has never before addressed to such a degree the content of the contract. Although the draft needs to be fine-tuned, it already provides a number of appropriate solutions.

A key element of the proposed new Public Procurement Law is to regulate the protection of personal data collected in the course of procurement procedures. Significant exceptions from the general rules of the GDPR are planned. What should they consist of?

Foreign managers appointed to serve on boards of Polish subsidiaries often do not know what they can do and what they must do. Consequently they are not aware of what liability goes with either of these. They should be.

In the context of an M&A transaction a business lawyer is often perceived as necessary evil, a hardly justified cost. Even experienced market operators, when reflecting on how counsels contribute to their deals, seem to only focus on the most obvious, technical aspects of our job. “We have to engage and pay lawyers because they know the exact words that need to be put to paper for things or money to change hands and for us to be able to seek recourse” their reasoning seems to go. In more extreme cases clients are certain that lawyers, by definition, always impair the prospects of their enterprise.