Construction contract, price increase (Part 2)
Special feature in public procurement procedures - providers
Article 655 of the Code of Obligations stipulates that price increases can only be requested for price increases that have occurred since the conclusion of the contract (as in the contribution: Construction contract, price increase (Part 1) https://www.glusic.si /view/27 ), therefore, in public procurement procedures, a problem arises as to how bidders should behave in the event that prices increase during the period from the submission of the bid in public procurement to the conclusion of the contract with the selected bidder.
In public procurement procedures, there are special legal rules for the selection of the contractor, where it is common for the contractor to make a binding offer at a certain point, which is valid for a certain period of time. The binding offer therefore also refers to the stated prices per unit of measure, which, in accordance with the sixth paragraph of Article 89 of ZJN-3, may not be changed during the public procurement procedure.
The conclusion of a possible contract with the selected provider for a different price than the one offered, which would include, for example, a changed or increased price per unit, would in principle not be in accordance with ZJN-3. The same also applies to the annex to such a contract, which the client might sign together (on the same day) with the contract, since such implementation of the price increase, i.e. signing the annex at the same time as signing the contract, would mean avoiding the rules of ZJN-3.
The possibility of the provider is to conclude the contract despite the aforementioned. In doing so, the provider exposes itself to the risk that it will not be able to request price increases from the client that occurred from the moment the offer was submitted to the signing of the contract. The tenderer may therefore refuse to sign the public procurement contract without a fine and without liability for any damage resulting from the non-conclusion of the public procurement contract, as long as objective reasons are given, i.e. those that the tenderer could not influence, anticipate or prevent , eliminate and avoid them. This set of reasons can also include an increase in prices for materials, which would make it difficult for the provider to implement the contract or it would be unfair for such a deal to remain in force (such as Article 112 of the Code of Obligations).
At the Glušič Law Firm, we are happy to be at your disposal for any questions or advice.
Tanja Glušič, lawyer