Anti-crisis Shield 4.0 - changes concerning construction sector

Available languages: PL

The lower chamber of the Polish Parliament (Sejm) has completed work on another legal act concerning the “Anti-crisis Shield”, i.e. the act on co-financing of interest on bank loans granted to provide financial liquidity to businesses affected by COVID-19 (the so-called “Shield 4.0”). The Act is currently awaiting further work in the Senate.

The Act provides for several legal amendments relevant to the construction sector, particularly in the area of public procurement, which are intended to contribute to facilitating cash flows during the performance of a public procurement agreement. Among the most important of them, one should mention:

  1. the obligation to amend the public procurement agreement if it is concluded that the circumstances associated with the occurrence of COVID-19 affect the due performance of this agreement;

  2. a prohibition on:

    • deducting contractual penalties reserved in the event of non-performance or undue performance of the public procurement agreement from the contractor’s remuneration or other claims, and

    • seeking satisfaction of the above penalties from the performance bond

    during the period of the epidemic emergency or epidemic state declared in relation to COVID-19 and for 90 days from the date of revocation of the one which was last in force, provided that the event in respect of which the penalty was reserved occurred during the period of an epidemic emergency or the state of epidemic;

  3. the lack of obligation to demand that contractors provide a tendering security where the agreement value equals or exceeds the so-called “EU-thresholds”;

  4. the contracting authority’s obligation to pay the remuneration in instalments or to make advance payments for the performance of the agreement in the case of public procurement agreements concluded for a period of more than 12 months;

  5. the decrease in the amount of the performance bond by setting, as a rule, security at the maximum level of 5% of the total price indicated in the offer or the maximum nominal value of the contracting authority’s obligation under the agreement and leaving the current level of 10% only as an exception - where it is justified by the subject matter of the agreement or the occurrence of risk related to the performance of the agreement - as described by the contracting authority in the terms of reference;

  6. the possibility of a partial return of the performance bond after the performance of part of the agreement - if the contracting authority has provided for such possibility in the terms of reference;

  7. a change of the method of publication of the tender notice in an open tender procedure - it is only necessary to place the tender notice on the website[1].