Chcę Ci serdecznie polecić ciekawą analizę nowych wzorów dokumentacji przetargowej opublikowaną w listopadowej Gazecie Leśnej.
Spośród fragmentów, w których autor, Rafał Jajor, niemal „po sędziowsku” waży argumenty za i przeciw badanym zapisom, jest jedna kwestia, która szczególnie mnie zainteresowała – obowiązek dołożenia starań zamawiającego, by w jednym miesiącu zlecać nie więcej niż 20% prac.
Zapis, jak słusznie zauważa autor, jest miękki, ale nie bez prawnego znaczenia.
Wyobraźmy sobie proces o kary umowne, naliczone w sytuacji nadmiernego obłożenia pracą. Właściciel ZUL-a może zmusić zamawiającego, aby przed sądem wytłumaczył dlaczego nie zechciał trzymać się „reguły 20%”.
Im mniej przekonujące tłumaczenie Nadleśnictwa, tym większa szansa na to, że w konkretnym przypadku kara zostanie zmniejszona. Do takiej czynności sąd ma zawsze prawo (nazywa się to „miarkowaniem kary umownej”), ale trzeba dostarczyć mu rozsądnych argumentów. Tym argumentem będzie treść zaleceń Dyrekcji Generalną Lasów Państwowych w zestawieniu z niewiarygodnymi, podanymi przez Nadleśnictwo w konkretnej sprawie przyczynami naruszenia „reguły 20%”.
Podsumowując: „reguła 20%”, pomimo, że nie w pełni zobowiązująca, to krok Lasów Państwowych w dobrą stronę!
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