Każdy, kto ma cokolwiek wspólnego z gospodarką leśną w Polsce wie, że w ostatnich latach umowy narzucane przez Nadleśnictwa „puchną”.
Wzbogacani o nowe doświadczenia, zamawiający starają się zabezpieczać na wypadek kolejnych scenariuszy, sytuacji i przypadków.
Liczba paragrafów rośnie i zwiększa się niemiłosiernie zakres uprawnień Nadleśnictw w codziennych relacjach z firmą leśną.
W efekcie, mamy do czynienia z czymś, co nazwałem już na tym blogu pętlą zaciskającą się na szyi wykonawców.
Zjawisko, o którym mowa nawet byłbym przewrotnie skłonny potraktować jako zrozumiałe. To nic innego, jak naturalne rozpychanie się silniejszego, dominującego kontrahenta.
Problem polega na tym, że nie widać granic tego działania.
W moich rozmowach z przedsiębiorcami leśnymi dostrzegam liczne przypadki bezwzględnego wykorzystywania zapisów umów przez Nadleśnictwa.
Często dochodzi nawet do nadużyć, o czym w tym artykule na portalu firmylesne.pl. Scenariusz opisany w tekście na szczęście skończył się w na sali rozpraw, ale nie każdy ma możliwość procesowania się.
Także nie wszystkie nieporozumienia warte są oddawania pod sąd.
Chcę wyrazić swój stanowczy sprzeciw wobec praktyki bezrefleksyjnego sięgania po zapisy umowne przeciwko ZUL-om.
Najświeższe przykłady:
- zamiana pozycji leśnych w stosunku do opisu przedmiotu zamówienia (teoretycznie dozwolona) na takie, gdzie znacznie wzrasta pracochłonność zlecenia;
- czyszczenia z masą, na których większość drzew idzie „pod nogę”.
Tego typu praktyki to jawne nadużycia, wprost uderzające w uzasadniony interes wykonawcy, który za te same pieniądze musi wykonać cięższą pracę.
Nie dam się przekonać, że taka ruletka jest zgodna z ogólnymi zasadami prawa kontraktowego.
Nie na tym polega współpraca partnerów i obowiązek wzajemnego wspierania się stron, które skądinąd jest narzucone we wzorze umowy.
Kontrakt, nawet w sferze zamówień, obejmuje bowiem założenie działania w dobrej, a nie złej wierze.
***
Nowa ustawa przetargowa dopuszcza wprost możliwość skarżenia do KIO projektowanych postanowień umowy oraz wprowadza klauzule niedozwolone.
Może dzięki temu tegoroczny sezon przetargowy da szansę na lepszą pozycję ZUL-i…
{ 57 komentarze… przeczytaj je poniżej albo dodaj swój }
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