Zgodnie z zapowiedzią, w sobotę odwiedziłem kolejną edycję Forest Show, tym razem w Legnicy. Fotorelacja do obejrzenia tutaj.
Nie wiem jak to się dzieje, że organizatorzy niemal zawsze zapewniają dobrą pogodę…
***
Podczas imprezy branżowej, przy stoliku pod szyldem „Porady prawne” udało się przeprowadzić kilka ciekawych dyskusji.
Jedna z nich dotyczyła maksymalnego wynagrodzenia wynikającego z umowy zawartej z Nadleśnictwem. Problem właściciela firmy leśnej jest taki, że zrealizował całość prac opisanych w przedmiocie zamówienia, ale nie dostał wynagrodzenia równego maksymalnej kwocie określonej w umowie. Łączna, zafakturowana suma okazała się mniejsza.
Podstawowe zagadnienie brzmiało:
„Czy mogę oczekiwać zapłaty kwoty maksymalnej?”
Na tak sformułowane pytanie odpowiedź była następująca:
„Nie.”
Umowa o zamówienie na usługi leśne nie gwarantuje uzyskania określonej kwoty pieniężnej. Wartość podawana w ofercie to suma najwyższa, możliwa potencjalnie do osiągnięcia. Cena całkowita przesądza co prawda o wygranej ofercie, ale wykonawca nie ma pewności jej uzyskania.
***
Oczywiście problem nie byłby tak ciekawy, gdyby sprowadzał się wyłącznie do zadania prostego pytania i znalezienia prostej odpowiedzi.
Po dłuższej konwersacji okazało się, że rzeczywiste pretensje wykonawcy i jego oczekiwania tkwią gdzieś indziej. W ramach zlecanych prac ZUL wykonywał takie czynności, które w ogóle nie były przewidziane w opisie przedmiotu zamówienia. Chodzi o usługi związane z pozyskiwaniem sortymentu, o którym w SIWZ nie wspomniano, generujące dodatkową czasochłonność.
I tu dochodzimy do sedna problemu. Skoro zakres robót był inny niż w SIWZ, a prace okazały się trudniejsze,
„Czy wykonawca ma z tego tytułu jakieś prawa?”
Tym razem odpowiedź jest inna i brzmi:
„Tak. Jeżeli poniósł szkodę, może oczekiwać rekompensaty”.
Błędy w opisie przedmiotu zamówienia generujące straty po stronie firmy leśnej mogą stanowić podstawę do wystąpienia z żądaniem zapłaty. Wszakże obowiązkiem zamawiającego jest maksymalnie precyzyjne scharakteryzowanie zakresu zamówienia. Nadleśnictwo powinno ponieść konsekwencje finansowe, jeżeli z tej powinności nie wywiąże się należycie.
Szkoda, że takie problemy w praktyce można rozwiązać tylko przed sądem….
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