Stan epidemii obowiązuje
Rozporządzeniem z dnia 20 marca 2020r. ogłoszono stan epidemii. Rozporządzenie nadal obowiązuje i nic nie wskazuje na to, że w najbliższej przyszłości będzie odwołane.
Przepisy osłonowe obowiązują
W związku z epidemią władze wprowadziły szereg uregulowań, które miały służyć ochronie przedsiębiorców. Wiele z nich także nadal jest w obrocie. Wśród nich przepis bardzo ważny dla właścicieli zakładów usług leśnych, o którym skądinąd pisałem w ubiegłym roku.
Do tematu wracam dlatego, że mam wrażenie, iż wielu zamawiających nie pamięta o nim.
W świetle obowiązującej ustawy, w okresie stanu epidemii lub zagrożenia epidemicznego, a także w okresie 90 dni od odwołania takiego stanu,
nie można potrącać kar umownych wynikajacych z umów o zamówienie.
Mówimy o karach dotyczących zdarzeń z okresu epidemii – czyli w praktyce akurat wszystkich mających miejsce w tym roku.
Przy okazji, dla tych, którzy realizują umowy długoletnie (jakkolwiek to już rzadkość) – Urząd Zamówień Publicznych potwierdził stosowanie zakazu potrąceń również do takich umów.
Uwaga: nie oznacza to, że kary stają się w ogóle nienależne. Potrącenie będzie się znowu możliwe po końcu wspomnianego okresu, jeżeli oczywiście kary nadal będzie z czym potrącić (nierozliczone faktury wykonawcy).
W zanadrzu pojawia się jeszcze kwestia zabezpieczenia należytego wykonania umowy, którego okres kończy się w czasie epidemii. Nie wykluczam, że w przypadku powstrzymania się od potrącenia, Nadleśnictwo sięgnie po zabezpieczenie przed jego wygaśnięciem.
Zakaz potrąceń obowiązuje…
Wracając jednak do potrąceń, jest jedno zagadnienie wymagające stanowczego podkreślenia. Otóż zakaz kompensaty nie jest związany z okolicznościami naliczenia kary. Innymi słowy, Nadleśnictwo nie może potrącić wypłaty nie tylko wtedy, kiedy kara ma związek z trudnościami Covidowymi (np. brak kadr, opóźniony serwis maszyny z powodu zakłóceń w łańcuchu dostaw części zamiennych).
Powstrzymanie się od potrąceń obowiązuje również w sytuacji, gdy powody naliczenia kar nie są związane z Covidem. Zakaz potrąceń jest bezwzględny, niezależny od przyczyn.
Taka jest moim zdaniem jedynie właściwa interpretacja wspomnianych przepisów i to nie wymagająca ich bardzo wnikliwej analizy.
… ale czy w Nadleśnictwach także?
Niestety, niektóre Nadleśnictwa nie zgadzają się z nią i wtrzymują wypłaty. Zamawiający oczekują udowodnienia związku kar z covidem.
Nie wykluczone, że tematem powinna zająć się Dyrekcja Generalna…
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