Contractual liability. Public procurement contract. Purchaser’s obligations. Unjustified denial of performance
DREPTUL CONTENCIOSULUI ADMINISTRATIV ȘI FISCAL
Abstract
The court of first instance emphasized the causality link between the acts of non-observance of the main contractual obligations which were subject to these claims addressed to the engineer and the damage calculated in the specialized technical expert’s report prepared in this case by reference to the contractual provisions invoked in the claims, the examination of which was made also by the determinations issued by the engineer, however, the report unreasonably limited both the amount of the compensation due to the contractor, as well as their basis, under the circumstances in which the non-performance of the agreement by either party shall determine not only some indirect expenses expressly provided for by both parties, but also some expected expenditure insofar as the incurring of such expenses was certain. Thus, the non-performance of such obligations is essential and significant for the achievement of the subject-matter of the contract, since the appellant-defendant refused to perform such obligations, it was registered the delay considered by the expert appointed in the case, in relation to the complex subject-matter of the procurement contract, the qualitative, quantitative and value related level of the resources allocated for the execution of the works assumed by the respondent within the schedule agreed upon under this contract, issues which have been materialized by the entire documentation enclosed to the attached files on the merits, taken into account upon drafting the expert’s report, and the content of which was not challenged in terms of truthfulness and/or reference to the expenditure/damage incurred/suffered by the contractor, the latter mainly invoking the impairment if its production capacity and the allocation of its own resources with a view to achieve the goal proposed by the conclusion of the contract between the parties incurring some costs and financial loss.
