Treść umowy konsorcjum to w hierarchii innych, przygotowywanych do przetargu dokumentów, zwykle dalsza pozycja.
To błąd.
Umowa konsorcjum jest ważna, szczególnie na etapie realizacji umowy z Nadleśnictwem.
Mam za sobą kilka ciekawych procesów sądowych, także spoza branży leśnej, dotyczących konsorcjantów oraz wykonania umów o zamówienie. Na bazie tych doświadczeń uważam, że treść umowy konsorcjum powinna zawierać następujące postanowienia dotyczące realizacji kontraktu:
- Podział prac. Na ile to możliwe, zalecam zdefiniowanie podziału już na wstępnym etapie współpracy (terytorialny, przedmiotowy, itp.).
- Zasady wzajemnego zaangażowania potencjałów konsorcjanów – czy pozostają niezależni, każdy z nich pracuje własnymi ludźmi i sprzętem, czy współdziałają. Jeżeli współdziałają – w jaki sposób.
- Zasady odbierania zleceń – czy każdy konsorcjant odbiera swoje, czy mogę się wymieniać tymi rolami.
- Jednoznaczne postanowienia odnoszące się do rozliczeń. W szczególności, uwagi wymaga sytuacja, gdy wyłącznie lider ma fakturować zamawiającego. Należy przesądzić, czy to tylko jemu przysługuje ewentualnie ściąganie całości należnosci wynikających z umowy, czy też samego fakturowania nie należy interpretować aż tak szeroko. To bardzo ważne pod kątem dochodzenia ewentualnych płatności od zamawiającego.
- Zasady wewnętrznego rozliczania kar i jasne ustalenie, że kary obciążają tego, kto zawinił. W tym zakresie wskazane jest prawo potrącania kar przysługujące fakturującemu liderowi.
- Inne, organizacyjne uprawnienia lidera na wypadek problemów w realizacji, np. możliwość przeorganizowania prac, przekierowania ad hoc na wybrane pozycje, przekazania zlecenia wybranemu, wolnemu konsorcjantowi.
- Odpowiedzialność za wycofanie się z realizacji zamówienia. Zdarza się, że jeden z członków zespołu rezygnuje w trakcie umowy. Można w niej zapisać, za co w takiej sytuacji będzie odpowiadał (np. za kary spowodowane jego wycofaniem), potwierdzając de facto odpowiedzialność wynikającą z przepisów.
Zbliżają się przetargi – nie lekceważ umowy konsorcjum!
***
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