Statement of the NDI Group
Following the publication on 9 January 2023 on the website www.tram-silesia.pl of the following information: Tramwaje Śląskie S.A.» The broken contract with the contractor of works in Mysłowice (tram-silesia.pl), the Consortium of NDI S.A. and NDI Sopot S.A. clearly indicates that the declaration of withdrawal from a contract, submitted by Tramwaje Śląskie S.A. – one of the investors of the project (the other is Urząd Miasta Mysłowice) acting on the basis of a separately concluded contract with the Consortium – is unfounded and the contractual penalty charged by it is in whole unfounded.
The Consortium informs that, contrary to the statement of the ordering party, the delay in the implementation of the investment was not caused by circumstances for which the contractor is responsible but by circumstances independent of the contractor and attributable to the ordering party. In particular – in the course of the execution of works – numerous deficiencies and shortcomings were disclosed in the documentation provided by the ordering party, including in the scope of arrangements with network administrators, resulting in the need to temporarily suspend works and to perform a number of additional and replacement works not covered by the contract. Although the ordering party was up to date and immediately informed by the contractor about the occurrence of each of the obstacles disclosed, it did not take the necessary decisions conditioning the possibility of continuing works by the contractor, thus significantly delaying the implementation of the investment.
The contractor indicates that it is surprised by the decision of the ordering party to submit a declaration of withdrawal from the contract. As confirmed by the correspondence conducted by the parties, the contractor requested the ordering party to extend the time of performance of the contract, indicating in detail the reasons and justifying them, and in December 2022, during a meeting with the contractor, the ordering party declared its intention to hold talks between the parties in this regard.
The Consortium strongly opposes the statement expressed in the publication by Tramwaje Śląskie S.A. about the alleged “unreliability” of the contractor. As indicated above, the Consortium has performed works reliably and did not breach its obligations. In addition, the reliability of the contractor is confirmed by the implementation by the Consortium for the benefit of Tramwaje Śląskie S.A. of several other investments, fully accepted by the ordering party and put into public use, including, e.g., in Katowice, Chorzów, Zabrze, Ruda Śląska and Bytom.
Moreover, the Consortium emphasises that the ordering party’s decision to withdraw from the contract raises significant doubts as to its purposefulness. Provided that the ordering party cooperates with the Consortium as postulated by the contractor, the contractor is able to complete the investment in 2023, while the unjustified termination of the contract by the ordering party will result in a postponement of its implementation by more than a year, resulting in its completion in 2024 at the earliest. It is so because the time for completion will be extended by the time necessary to complete the works, which both the Consortium and any other contractor would need, and the time of re-tendering procedure. At the same time, the change of the contractor in the course of the work exposes the City of Mysłowice to a significant risk of delay in removing the inconveniences related to the investment and both investors to the risk of incurring higher, additional costs of the project, for which Tramwaje Śląskie S.A. will be fully responsible.
Update, 16 January 2023
In connection with the information provided on 13 January by the President of Mysłowice regarding the submission by the City of Mysłowice of a declaration of withdrawal from the contract with the Consortium of NDI S.A. and NDI Sopot S.A., the Consortium strongly emphasises that, similarly to the statement submitted by Tramwaje Śląskie S.A., the statement submitted by the City of Mysłowice is unfounded and the contractual penalty charged is completely unjustified.
The Consortium informs that, contrary to the statement of the ordering party, the delay in the implementation of the investment was not caused by circumstances for which the contractor is responsible but by circumstances independent of the contractor and attributable to the ordering party.
The contractor emphasises that it is surprised by the decisions of both ordering parties, as the parties were in the course of talks aimed at solving the problems on the construction site. The contractor, assuming the willingness to cooperate declared by the ordering parties, decided on an amicable proposal and declared the completion of works in the autumn of 2023.
As already indicated by the contractor, the ordering parties’ decisions to withdraw from the contract raise doubts as to their purposefulness. The new tender procedure will not only significantly extend the implementation time, which will cause a nuisance to the residents of Mysłowice for a longer time, but also expose both investors to the risk of incurring higher, additional costs of implementing the project.
However, in order to protect the residents and both ordering parties from such consequences, the contractor will immediately apply to the General Counsel to the Republic of Poland for mediation.