Unfortunately, although the programme sets out detailed rules and requirements for beneficiaries and contractors, the actual procedure for selecting the company to carry out the investment remains the responsibility of the investor – and consequently, the investor bears responsibility both for the selection of the contractor and for the proper implementation and settlement of the investment. Therefore, should there be any indications of a contractor’s unreliability, it is essential to take appropriate legal and practical steps without delay to minimise the risk of losing both the grant and one’s own funds.
Who is an “unreliable contractor” in the context of the “Clean Air” programme?
In the context of works co-financed under the “Clean Air” programme, an unreliable contractor is defined as an entity that fails to fulfil its obligations, carries out works in a defective manner or in breach of the contract. In practice, the most common problems reported by beneficiaries include, amongst others, negligent execution of works, failure to provide key documents, lack of contact and evasion of responsibility, as well as failure to deliver or install.
The official guide for beneficiaries of the ‘Clean Air’ programme identifies as many as ten of the most common market irregularities that should raise an investor’s suspicions as early as the contract implementation stage. Should any of the symptoms listed in the guide arise, one should not delay in taking decisive legal and formal action to effectively protect one’s rights and safeguard the grant funding.
What should you look out for when reviewing the content of the contract with the contractor?
The most important tool for safeguarding an investor’s interests in the ‘Clean Air’ programme is a properly drafted contract with the contractor. It is worth remembering that the programme provides for the use of an official contract template, which is available to beneficiaries and includes the most important, mandatory provisions. When reviewing the terms of the contract with the contractor, you should pay attention to:
- the scope and standard of the works the contractor is obliged to carry out,
- contractual penalties for delays or defective performance of the work by the contractor, and
- the parties’ right to withdraw from the contract.
It is worth remembering that in the case of contracts concluded away from business premises or at a distance, the consumer also has a specific right of withdrawal within the statutory time limits (14 or 30 days, or even 12 months if they were not informed of this).
What should you do if the contractor fails to fulfil the contract?
The basis for an effective response is to gather all documents relating to the project: the contract with the contractor, invoices, receipts, bank transfer confirmations, correspondence (text messages, emails), ‘before’ and ‘after’ photos of the work, and handover reports. The more complete the documentation, the easier it is to prove your case in a dispute with the contractor or before the fund.
If amicable and complaint procedures have been unsuccessful, the beneficiary of the “Clean Air” programme has a range of legal remedies at their disposal to pursue claims against an unreliable contractor.
- Claims under warranty and guarantee
- Enforcement of contractual penalties and damages
- Pursuing claims through the courts
- Reporting to law enforcement authorities
Impact of disputes with the contractor on the grant
From the perspective of a beneficiary of the ‘Clean Air’ programme, it is particularly important that any dispute with a contractor does not result in the loss of the right to the grant awarded. Any serious irregularities may result not only in a refusal to settle accounts, but even in an obligation to repay the funds received, together with interest.
The most significant risks include:
- Failure to meet the programme’s requirements
If the work has not been carried out in accordance with the documentation or technical standards, or if the scope does not correspond to what was set out in the energy audit, the fund may refuse to settle the investment.
- Missing or incorrect documentation
Failure to submit complete investment documentation (e.g. acceptance reports, invoices, documents relating to installed equipment) is a common reason for the suspension or withdrawal of grant payments.
- Missing deadlines
The programme sets specific deadlines for the completion of the investment; exceeding these deadlines, unless justified and accepted by the fund, may also lead to the loss of entitlement to the grant and the obligation for the beneficiary to repay it.
Summary
The implementation of an investment co-financed under the “Clean Air” programme involves numerous formal requirements and financial risks. As practice shows, even minor errors at the stage of selecting a contractor or signing a contract may result not only in the loss of one’s own funds but also of the grant. In light of the above, I encourage you to consult our law firm before signing a contract with a contractor or should any issues arise during the implementation of an investment project in the energy sector.
She gained experience in providing day-to-day legal services to individuals and entrepreneurs at a number of law firms in Warsaw specializing in corporate law and family law. At the firm, she provides services to entrepreneurs and individual clients in the field of contract and business law. As part of her professional practice, among other things, she analyzes, reviews and creates civil law contracts, prepares legal opinions in the field of civil and business law, and drafts and prepares corporate documents,…
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