PKP PLK\u2019s decision to terminate the contract for the \u0141\u00f3d\u017a cross-city tunnel is an unprecedented event in the recent history of Polish infrastructure. Breaking a contract at such an advanced stage (over 70% physical progress) is, in contract engineering terms, a boundary situation \u2014 a point at which standard risk-management procedures stop being sufficient.<\/p>\n\n
For 15 years, working within the structures of leading infrastructure companies, I have repeatedly managed crisis situations. I know what the Legal Directors and Management Boards of the companies involved are facing right now. This is not a time for theorising. This is a time for \u201cLegal Crisis Management\u201d.<\/strong><\/p>\n\n At Hoogells<\/strong>, we analysed this case through the lens of litigation strategy. Where are the real turning points in this dispute?<\/p>\n\n A shift in the risk vector: Finance vs. Safety<\/strong><\/p>\n\n Terminating a contract at 71% completion is, in project management theory, the most difficult decision. Usually, thinking is dominated by \u201csunk costs\u201d and the conviction: \u201cwe\u2019re too far in to turn back.\u201d PKP PLK has broken that pattern.<\/p>\n\n The tenement-house disaster at al. 1 Maja changed the risk vector from purely financial to reputational-and-criminal. F<\/strong>or the marketor the market, this is a powerful signal: safety (and PR) are starting to outweigh the schedule.<\/strong> If your construction site poses a real risk of a structural disaster, no deadline extensions by addendum will save you.<\/p>\n\n A geotechnical risk audit must be a continuous process, carried out throughout the entire duration of the contract, not merely an element of the tendering stage. A lawyer must work closely with an engineer here \u2014 clauses will not hold up sinking ground.<\/p>\n\n Inventory-taking in the shadow of the TBM: A race for \u201cState Zero\u201d<\/strong><\/p>\n\n From the Investor\u2019s perspective, termination is a \u201csurgical cut.\u201d From the Contractor\u2019s perspective, it is the beginning of evidentiary chaos. In an underground project executed using the TBM method, the greatest challenge is not stepping off the site, but precisely separating what has been completed from what requires repair.<\/p>\n\n We are entering a zone of enormous risk, which I call the \u201csuccessor trap.\u201d A TBM is an underground factory. Once the machine is stopped and the contract is terminated, the Contractor loses control over ground and lining parameters. If, in six months\u2019 time \u2014 during the standstill \u2014 ground settlement or segment (tubing) leakage occurs, the Investor will automatically attribute it to workmanship defects of the original Contractor. The new company that comes in to complete the works will adopt a logical strategy: maximise the scope of \u201cremedial\u201d works and minimise the scope of \u201ccompletion\u201d works.<\/p>\n\n In such a situation, a paper protocol is fiction. The only way to protect the margin is immediate evidence preservation with the participation of an independent expert, and creating a digital twin of the as-built condition (drones, 3D laser scanning). We must \u201cfreeze\u201d reality before it is overwritten by the successor.<\/p>\n\n Direct payments: The Investor\u2019s \u201cgenerosity\u201d with your money<\/strong><\/p>\n\n PKP PLK is boasting in the media about paying PLN 250 million directly to subcontractors. In news services, this sounds like a success. But for the General Contractor (GC), that message sounds like a grenade being unpinned.<\/p>\n\n The mechanism of joint and several liability, in the context of contract termination, turns into an uncontrolled drain on the Contractor\u2019s wallet. Why?<\/p>\n\n At the termination stage, the in-house legal department cannot be left alone. The key is to bring in an external team of \u201cclaim auditors\u201d (Claim Auditors) to create a tight verification sieve. Every zloty paid by the Investor without the Contractor\u2019s hard verification is a loss the Contractor will likely never recover.<\/p>\n\n Guarantees \u2014 a standard tool that requires a new tactic<\/strong><\/p>\n\n Finally, an issue that for all of us managing contracts is daily bread: performance guarantees. We know the Investor will reach for them. The question is: how do you prepare to recover them? In the \u0141\u00f3d\u017a case, the crucial element will be the causal nexus. To what extent were the problems with the tenement houses a Contractor risk, and to what extent an Investor risk? The fight to recover funds under the guarantee will require proving that the termination lacked substantive grounds in the context of unforeseeable ground conditions.<\/p>\n\n Summary<\/strong><\/p>\n\n The \u0141\u00f3d\u017a tunnel case is redefining the concept of risk in public contracts. At Hoogells, <\/strong>we believe the role of external counsel is evolving. We are not here to teach you procedures you have known for years. We are here to bring a fresh perspective, processing capacity, and a \u201ccool head\u201d that is often missing at the centre of the cyclone.<\/p>\n\n I invite discussion. In your view, will prioritising safety over the schedule become a new standard in case law in construction disputes?<\/p>\n","protected":false},"excerpt":{"rendered":" PKP PLK\u2019s decision to terminate the contract for the \u0141\u00f3d\u017a cross-city tunnel is an unprecedented event in the recent history of Polish infrastructure. Breaking a contract at such an advanced stage (over 70% physical progress) is, in contract engineering terms, a boundary situation \u2014 a point at which standard risk-management procedures stop being sufficient. For […]<\/p>\n","protected":false},"author":30,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[161],"tags":[],"class_list":["post-3738","post","type-post","status-publish","format-standard","hentry","category-engineering-consulting-en"],"acf":[],"yoast_head":"\n\n