Kontrakt menedżerski w zamówieniach publicznych

Abstract

When looking for the appropriate place for a management contract, it is necessary to use empirical findings and general theoretical premises for the qualification of obligation contracts. A management contract within the scope of manager's performance combines two types of contracts covering provision of services, namely: when it comes to legal actions - a contract of mandate, in the case of factual actions - a contract for provision of services referred to in Article 750 of the Civil Code. Taking into account the degree of ‘intensification’ of the features characteristic for a contract of mandate, it has to be stated that the majority of the manager's obligations are legal actions, and their practical significance is also essential. For these reasons, a contract of mandate sensu stricto was considered to be the leading type of agreement within the framework of the managerial contract. For factual actions, it was deemed necessary to apply the legal regime applicable to a contract for the provision of services on the terms of mandate in terms of Article 750 of the Civil Code. Therefore, for the purpose of simplification of the whole issue, taking into account the results of the empirical analysis, reinforced by legal and comparative findings, a de lege ferenda postulate should be expressed concerning the need to promote the management contract to the group of named contracts and locate this complex construction within the subtype of contract of mandate. This proposal is in line with the outcome of the work of the Codification Committee for Civil Law Reform. Professor Z. Radwański, in his preliminary draft of the systematic approach to the special part of contract law, already envisaged separating the management contract as a sub-type of contract of mandate, within the group of contracts pertaining to the provision of services and consisting in diligent performance. The contract of mandate for its possible subtypes would constitute an overarching construction, although its scope needs to be adjusted to cover not only legal acts, but at least the factual acts related to them.