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What does lump-sum remuneration cover? The scope of works in Polish construction contracts

Ten artykuł jest dostępny także po polsku. Dieser Beitrag ist auch auf Deutsch verfügbar.

Lump-sum remuneration is a fixed price for an agreed scope of works. The dispute begins where it has to be established what belongs to that scope — and that is decided by several layers of documents at once: the building permit design, the detailed design, the technical specifications, the bill of quantities, the material schedules and the contract itself with its completeness clauses. Below we show what the scope of performance is actually read from under Polish law, why the type of lump-sum contract determines the allocation of risk, what turnkey clauses are really worth and where contractors lose these disputes most often.

How the Polish Supreme Court defines the lump sum — and what that definition is silent about

„A lump sum consists in agreeing in advance on the amount of remuneration as an «absolute» sum, with the parties’ express or implied consent that the contractor will not claim higher remuneration.”

— judgment of the Supreme Court of 14 March 2008, IV CSK 460/07, LEX No. 453070

Three years later the Court put it even more sharply:

„[T]he parties, in deciding on this form, must reckon with its absolute and rigid character, which, in accordance with Article 632 § 1 of the Civil Code, consists in the fact that the contractor may not demand an increase of the remuneration even if, at the time the contract was concluded, the extent or cost of the works could not have been foreseen.”

— judgment of the Supreme Court of 25 March 2011, IV CSK 397/10, LEX No. 1129144

Both statements — like the earlier judgment of the Supreme Court of 20 November 1998, II CKN 913/97 (LEX No. 138655) — concern only the amount of the price. Neither answers the question of what scope of works that price is due for. And it is scope, not amount, that almost every dispute is about.

The clue lies in Article 632 § 1 of the Act of 23 April 1964 — Civil Code (consolidated text Dz.U. 2024 item 1061) itself. The provision denies the contractor a claim for an increase „even if the extent or cost of the works could not have been foreseen” at the time of contracting. The rigidity of the lump sum therefore covers two risks: quantities and prices — always in relation to the works, that is to the performance the parties have described. It does not follow from the provision that the price also covers works which the contract and the documentation did not provide for at all. What was fixed is the price, not the scope of performance — we develop that argument in detail in the article on additional works and lump-sum remuneration. Here we deal with the prior and practically more important question: how does one know what is in the scope at all.

Where a court reads the scope of performance from: a map of the documents

The Civil Code directs that in contracts one should „examine what the concurrent intention of the parties and the purpose of the contract were, rather than rely on its literal wording” (Article 65 § 2). The material for that interpretation is exceptionally extensive in construction, because „the documentation required by the relevant provisions constitutes an integral part of the contract” (Article 648 § 2). The design is not an informational annex — it is the content of the obligation. Article 647 of the Civil Code adds a second reference point: the contractor delivers a structure executed „in accordance with the design and with the principles of technical knowledge”. In practice the scope is read from several layers of documents and rules. Each is worth knowing separately, because they carry different weight in a dispute.

The design and the rule of Article 649 of the Civil Code

One has to begin with a rule many contractors first learn about in court:

„W razie wątpliwości poczytuje się, iż wykonawca podjął się wszystkich robót objętych projektem stanowiącym część składową umowy.” — In case of doubt it is presumed that the contractor has undertaken all works covered by the design constituting an integral part of the contract.

— Article 649 of the Polish Civil Code (author’s translation)

The significance of this provision is twofold and both directions of its operation matter. First — and this is the direction favourable to the contractor — the reference point for the scope is the design, not the general aim of the investment or the name of the task in the heading of the contract. Doubts are resolved by reference to the documentation, not by asking what is needed for the structure to function. Secondly — and here the provision works against the contractor — everything that is in the design is, in case of doubt, deemed covered by the obligation, even if it was omitted from the schedules and the pricing.

In our view the second direction is difficult to reconcile with the rule that ambiguities burden the author of the text. Since it was the employer who chose the model in which it supplies a detailed design itself, it should consistently be the employer who bears the doubts arising from the quality of that design. Article 649 reverses that allocation and extends the contractor’s obligations without any substantive justification. As long as the provision stands in this wording, however, the practical conclusion is unambiguous: when pricing a tender, read the drawings and the technical descriptions, not only the bill of quantities and the material schedules.

The building permit design: a legal framework, not an instruction for building

The statute does not define the „design” referred to in Article 647. In practice its core is the building permit design (projekt budowlany) within the meaning of the Polish Act of 7 July 1994 — Construction Law (consolidated text Dz.U. 2025 item 418), which consists of three parts: the land development design, the architectural and construction design, and the technical design covering, among other things, the structural solutions together with the results of structural calculations (Article 34(3) of the Construction Law). The scope and content of the design „should be adapted to the specific nature and character of the structure” and to the complexity of the works (Article 34(2)) — which in practice means that the level of detail is largely for the designer to decide. One meets designs of a few pages and designs of several hundred pages, and both can satisfy the statute.

The building permit design serves above all to obtain the building permit. For pricing a tender and for actual construction it is as a rule too general: it lacks material, workshop and technological detail. That detail is to be supplied by the next layer of documentation.

The detailed design: where most scope disputes live

The only legal measure of the required detail of the detailed design (projekt wykonawczy) is contained in the implementing regulation to the Public Procurement Law: the detailed design „supplements and particularises the building permit design to the extent and degree of accuracy necessary to prepare the bill of quantities, the employer’s cost estimate, the preparation of the tender by the contractor and the execution of the works” (§ 5(1) of the Regulation of the Minister of Development and Technology of 20 December 2021, Dz.U. item 2454). In public procurement that measure applies directly, because works contracts are described precisely by means of the design documentation and the technical specifications (Article 103(1) of the Act of 11 September 2019 — Public Procurement Law, consolidated text Dz.U. 2024 item 1320). Outside that regime the parties almost always invoke the same measure in the contract — there simply is no other one in Polish law.

The formula „everything necessary for tender preparation and execution” is, however, capacious enough that disputes over whether a specific gap in the detailed design is a defect of the documentation or a „workshop detail” belonging to the contractor are pre-programmed. There is no Polish equivalent of a legally binding schedule of design services that would tie specific deliverables to specific design stages. Attempts by professional bodies — standards of architectural practice or rules for pricing design work — are recommendations and are rarely incorporated into contracts. The result is paradoxical: it is hard to hold the designer liable for incompleteness, because it is not known exactly what the designer owed, and in practice the gap is filled by the contractor within the lump sum.

Technical specifications: the standard, the quality and the works that are easily forgotten

The technical specifications for the execution and acceptance of construction works (Polish abbreviation: STWiORB) define the required standard: they contain the sets of requirements necessary to determine the quality of execution, the properties of construction products and the manner of assessing the correctness of individual works (§ 12 of the Regulation). Less well known is another obligation: the general part of every specification must contain „a list and description of accompanying works and temporary works” (§ 14(1)(2)(b)) — that is, dewatering of excavations, haul roads, protective structures, formwork and all the infrastructure that is removed after the principal works are completed. Why this matters so much will become clear when we come to the bill of quantities.

Principles of technical knowledge and Polish Standards

Article 647 of the Civil Code writes „the principles of technical knowledge” into the content of the obligation — rules that are theoretically sound and proven in practice, regardless of whether they have been written down anywhere. The parties need not invoke them in the contract. They apply by force of statute and set the minimum standard of execution. A higher standard — for instance the current state of the art — must be expressly agreed.

Polish Standards (PN) are a separate category. The statute provides that their application „is voluntary” (Article 5(3) of the Act of 12 September 2002 on Standardisation, consolidated text Dz.U. 2015 item 1483), and in construction practice the mistaken conclusion is drawn from that sentence that the standards can be ignored. Voluntariness means only that a standard is not a provision of law. If, however, the content of a standard reflects the current principles of technical knowledge — and that assumption is made as a rule — then it binds the contractor by the indirect route: through Article 647. Whoever asserts otherwise should demonstrate that the standard has become technically outdated or has not gained acceptance in practice. In public procurement the standards additionally enter the description of the subject matter of the contract on the basis of Article 101(1)(2) of the Public Procurement Law. The „rules of the building craft” encountered in contracts have, by contrast, no independent normative content: what they cover either already belongs to the principles of technical knowledge or may operate as an established custom (Article 354 § 1 of the Civil Code).

The bill of quantities and the employer’s cost estimate: why they sit at the bottom of the hierarchy

Most misunderstandings concern the quantity schedules. Their weak position under a lump sum was created by the legislator itself:

„Where a works contract […] is awarded in a single-source procedure or the principle of lump-sum remuneration has been adopted in the draft contractual provisions, the design documentation need not include a bill of quantities.”

— § 4(3) of the Regulation of the Minister of Development and Technology of 20 December 2021 (Dz.U. item 2454), author’s translation

Under a lump sum the employer may therefore give no quantities at all — and the contractor then draws up its own tender take-off and bears the risk of its own calculations. Even where a bill of quantities has been attached, contracts almost always degrade it to „auxiliary material”. What that formula really means has to be unpacked into two sentences.

It means: quantity differences within works described by type in the design burden the contractor, because it was the contractor who calculated the quantities at its own risk. Whoever prices a tender solely on the basis of the bill of quantities takes on the risk of every item which the designer showed on a drawing and the estimator omitted from the table.

It does not mean: that the bill of quantities loses its evidential significance. It is often the only document from which one can see what the employer did not foresee at all. Works not included by type either in the design or in the specifications are not a „quantity difference” but works outside the scope — and here the bill of quantities works in the contractor’s favour.

Temporary and accompanying works: a trap built into the system

The table of the bill of quantities „does not include temporary works” (§ 9(2) of the Regulation), that is works designed and executed as needed for the principal works but not handed over to the employer and removed after completion (§ 1(4)). The same applies to accompanying works — for example geodetic setting-out and as-built surveys (§ 1(2)). The contractor will not see them in the schedule from which it calculates its price. It has to estimate them itself, relying on the specifications, which should list and describe them. Where the specifications are silent, the employer often demands their execution within the price anyway, and the silence remains without consequences for the author of the documentation.

In our view without justification. Since the legislator requires accompanying and temporary works to be described in the specifications, their omission is a deficiency of the description of the subject matter of the contract, which should be „unambiguous and exhaustive” (Article 99(1) of the Public Procurement Law) — not a risk of the contractor. Practice, however, is often different, which is why it is worth asking the employer expressly about temporary works before pricing and keeping the answer.

The employer’s cost estimate does not mark the boundary of performance

The employer’s cost estimate serves the employer to estimate the value of the contract, not the parties to define the scope. Case law denies it binding character: the contractor may not assume that within the lump sum it will perform only the works included in the estimate if the design says otherwise. Likewise the contractor’s own calculation — quantities, tonnages and rates adopted when preparing the tender — does not become part of the contract unless the parties expressly write it into the contract. Those are one party’s assumptions, not contractual stipulations. We will return to this with the practice examples.

Two warnings from the Supreme Court

The first concerns discrepancies discernible before the tender. In case IV CSK 460/07 the municipality erroneously failed to include some of the windows „in the bill of quantities”, and the contractor did not ask about the discernible discrepancies before submitting its tender, although it could have. The courts held against it that it could have addressed an appropriate question to the employer, which it failed to do — and the claims were dismissed. A discrepancy that was discernible and passed over in silence ceases to be the contractor’s argument.

The second warning concerns declarations on the sufficiency of the documentation. In case II CSK 101/08 the contractor declared at contracting that the quantities in the employer’s take-off allowed the subject matter of the contract to be performed without additional works. The Supreme Court, dismissing her cassation appeal, cited without reservation the position of the court of second instance:

„[W]here the claimant made a declaration that the quantity of works included in the take-offs allows the subject matter of the contract to be performed without carrying out additional works, the fact that inaccuracies of the measurements were discovered later does not justify a claim for payment for works not included in the employer’s take-off.”

— judgment of the Supreme Court of 26 June 2008, II CSK 101/08, LEX No. 637702 (citing the position of the court of appeal), author’s translation

The same judgment, however, also contains the other side of the coin — on the limits of the duty to examine someone else’s design:

„It does not follow from Article 651 of the Civil Code, by contrast, that the contractor is in every case obliged to check in detail the documentation supplied to it by the employer in order to detect its possible defects, bearing in mind that the contractor need not have specialist knowledge in the field of design.”

— judgment of the Supreme Court of 26 June 2008, II CSK 101/08, LEX No. 637702, author’s translation

The conclusion from reading both statements together: the contractor must report what is visible without a designer’s knowledge, and must not sign declarations that make it the guarantor of someone else’s take-offs. It is not, by contrast, responsible for systematically auditing the supplied design — and completeness clauses do not change that either, as we discuss below.

Three types of lump-sum contract — the type determines the allocation of risk

In practice one simply speaks of „the lump sum” as if it were a single mechanism. In fact lump-sum contracts divide into types which allocate risk entirely differently (the distinction between lump-sum contracts with detailed and functional descriptions of performance is discussed by K. Kapellmann, K.-H. Schiffers, J. Markus, M. Mechnig, Vergütung, Nachträge und Behinderungsfolgen beim Bauvertrag, vol. 2: Pauschalvertrag, 5th ed., Cologne 2011). The distinction tends to be overlooked in Polish disputes, yet it is the key to resolving most of them.

A lump sum on a detailed description

The employer hands over an elaborated documentation and prescribes the solutions, materials and technologies. The price covers what follows from that description. The contractor has no design authority here — it is to build according to someone else’s design. This is the model typical of Polish contracts, especially public ones. Its consequence is a presumption that the description is complete and correct: the contractor may assume that an employer who decided to describe the scope in detail described it fully and properly. Whoever takes over the design answers for it by virtue of the role it chose for itself.

A lump sum on a functional description

The employer defines the task in general terms — for example as a building with a given function and parameters — and leaves the choice of solutions to the contractor. The contractor must then translate the general description into concrete solutions itself: select the materials, the sequence of works, the details. Since it designs the path to the goal itself, it consistently bears the risk of the completeness of that path. Here loading the contractor with the risk is justified. Note that in a purely functional description a completeness clause is redundant: it confirms only what follows from the nature of such a description anyway, because there is no schedule of details whose completeness could be disputed.

The turnkey contract — a mixture of both descriptions

The most common form on larger projects. Part of the scope is described in detail, part functionally. The rule is simple and consistent: in each area we apply the principles appropriate to the way that particular area was described. Where the employer imposed detail, it answers for its correctness. Where it left freedom, the risk passes to the contractor.

The fourth „type”: a functional lump sum in name only

A construction encountered most often in disputes deserves its own name: a detailed employer’s design supplemented by a clause that the remuneration covers everything necessary to achieve the result. Such a contract tends to be presented as functional, but it is functional in name only. The employer keeps the design decisions to itself while trying to shift the risk of their incompleteness onto the contractor. That is not a change of contract type — it is a risk clause glued onto a detailed description, to be assessed under the rules described in the section on completeness clauses.

The rule of detail: detail binds also inside a general description

From the above division flows a practical rule of considerable force in a dispute. If, in an area described in principle functionally, the employer specified even one detailed parameter — a specific dimension, material or technology — that parameter binds. A functional description does not „absorb” the detail and does not allow it to be ignored. The more precisely the employer described a solution, the narrower the contractor’s field of freedom and the greater the employer’s responsibility for the consequences of that description.

From this follows the second rule: where the employer described the scope in detail, the contractor may assume that the description is complete and correct. It is not obliged to assume that the design contains gaps and to price in a reserve for someone else’s mistakes. If a gap comes to light, filling it is not a free-of-charge duty of the contractor. There is no „gap-filling” at the contractor’s expense — the employer who took over the design decisions answers for them by virtue of the role it assumed.

Two tendencies in the case law: the strict formula and the Gdańsk limit

Two tendencies clash in the case law of the Polish common courts. The first, strict one, requires the contractor as a professional to foresee everything that follows „naturally” from the construction process — including works the documentation does not expressly provide for. In its extreme version it leads to the conclusion that it is enough for a type of works to appear in the documentation at all, and the contractor must execute every quantity needed within the price. We have seen decisions in practice in which nearly double the quantity of road edging compared with the documentation was held to be covered by the lump sum merely because edging as such was in the design.

Both sides of this dispute — the strict formula and its limit — are contained in one judgment of the Court of Appeal in Gdańsk, which is why we quote it at length:

„[T]he establishment of lump-sum remuneration for construction works excludes the possibility of claiming payment for additional works only where those works are a natural consequence of the construction process and follow from it in a natural way. Moreover, they concern situations which a contractor holding the technical documentation should foresee as necessary to perform even though the documentation does not provide for them. This follows from the professional character of the activities performed by the contractor and the corresponding level of knowledge and professional experience. However, it is not justified to expect a complete exclusion of the possibility of claiming remuneration for additional works, particularly where the technical documentation, which is the basis on which the contractor calculates its remuneration, contains errors preventing the performance of the task so as to achieve the assumed final effect.”

— judgment of the Court of Appeal in Gdańsk of 12 March 2014, V ACa 846/13, LEX No. 1488615

And further, on the consequences of the opposite view:

„Were a different assumption to be adopted, a dishonest employer could establish payment terms favourable to itself while being aware of the necessity of those works and without informing the contractor of them (by omitting them from the documentation or describing them defectively), where the contractor could not have foreseen the need to perform them.”

— judgment of the Court of Appeal in Gdańsk of 12 March 2014, V ACa 846/13, LEX No. 1488615

The Gdańsk court does not reject the strict formula — it draws its limit. The foreseeability of works is assessed on the basis of the specific documentation actually handed over, not the general aim of the investment or the name of the task. Works which could not be read out of the documents with professional diligence are not covered by the price, and remuneration for them can be based on the provisions on unjust enrichment. That limit protects commerce against a premium for unreliability: if the lump sum also covered works concealed or defectively described, it would pay to describe the task carelessly.

When the contractor loses: two examples from practice

The rules above do not mean the contractor always wins. Two anonymised examples from practice show where the boundary lies — and they are a good test for one’s own case.

Column spacing and a thousand tonnes of steel

A contract worth more than PLN 20 million covered the turnkey supply and installation of a large industrial unit in a hall being erected in parallel by another contractor. The contract established a hierarchy of documents: first the contract itself, then the employer’s technical annex, and last the manufacturer’s drawing. The technical annex — the document of higher rank — prescribed a specific spacing of the columns of the supporting structure. The manufacturer’s drawing, the document of lower rank, showed a spacing several metres wider. During execution it turned out that the manufacturer, acting on the contractor’s order, could not fit the unit within the prescribed dimension. The structure had to be redesigned and tied into the structure of the hall, and steel consumption rose from about 700 to nearly 1,700 tonnes. The contractor demanded about PLN 10 million, arguing that it had calculated its tender on a specific tonnage.

That argument fails for two reasons. First, the cause of the change lay in the contractor’s sphere — it was its supplier who failed to meet the binding parameter, not the employer who designed wrongly. Executing the structure at the agreed spacing was technically possible, so there was neither a design defect nor impossibility of performance. Secondly, the tonnage of steel adopted in the tender calculation did not become part of the contract. A contractor’s internal calculation does not bind the other party and remains its own assumption — legally it is at most an error as to motive, which gives no claims. It is worth noticing, however, the other side of this settlement: if part of the increased tonnage would have been needed anyway, for instance to fix other units which the employer planned in the hall independently of the structural change, that share of the cost burdens the employer. It would have incurred it in every scenario, and there is no reason why precisely a change caused by the contractor’s supplier should relieve it of that share.

The earthing strip that was missing from the material schedule

In a contract worth over a dozen million zlotys for the construction of high-voltage cable lines the dispute concerned a single element — the earthing strip (a flat steel strip). It appeared on a drawing forming part of the detailed design, and the descriptive part mentioned connecting the cables to the strip. It was absent, however, from the material schedule, which was also an annex to the contract. The tender documents stipulated at the same time that the schedules were purely informational and that tenders were to be prepared on the basis of the detailed design, whose provisions prevailed in case of discrepancies.

The result is unfavourable to the contractor and follows directly from the rules described above. There was no contradiction between the drawing and the description — both indicated the strip. Only the material schedule was incomplete, and the parties themselves had deprived it of binding significance. Since the element was in the design, Article 649 of the Civil Code requires the assumption that the contractor undertook to execute it. Supply and installation fall within the lump sum.

The practical conclusion is hard: a clause on the auxiliary character of the schedules operates exactly as it reads. The scope is read from the design, not from the tables. Both defeats could have been avoided at the tender stage — by comparing the documents and putting a written question to the employer about every discrepancy noticed.

Contradictions between documents — how to resolve them

The column-spacing example shows how much a contractual hierarchy of documents can resolve. The conflict rules are worth knowing in the order of their application:

Completeness and turnkey clauses — what they are worth

Stipulations of the kind „the remuneration covers all costs necessary for the performance of the subject matter of the contract”, „the contractor confirms the completeness of the documentation” or „the contractor shall also execute works not included in the documentation but necessary” carry less force than their wording suggests. Five independent arguments make that so.

A general clause does not displace a specific provision. If the employer imposed a concrete solution and it proved defective or incomplete, the completeness formula does not change what the parties fixed in detail. A blanket clause does not extend a scope described in detail — otherwise every design error would be cured at the contractor’s expense by force of a single sentence in the contract.

Doubts burden the author of the text. The Supreme Court puts it unambiguously:

„[I]nterpretative doubts which cannot be removed by means of the general directives of interpretation of declarations of will should be resolved to the disadvantage of the party who drafted the text giving rise to those doubts (in dubio contra proferentem), for it is that party to the contract which should bear the risk of ambiguities of the contract text that cannot be removed by means of the general directives of interpretation of declarations of will, having drafted the text.”

— judgment of the Supreme Court of 8 October 2004, V CK 670/03, OSNC 2005, No. 9, item 162, author’s translation

That rule applies in professional dealings as well, and the template of a tender contract is drafted by the employer.

It matters whether the clause was imposed or negotiated. Polish law provides no elaborate content review of standard terms between entrepreneurs, but the boundary is set by freedom of contract: the parties may — as Article 353¹ of the Civil Code provides — „arrange the legal relationship at their discretion, provided that its content or purpose does not contradict the nature of the relationship, the statute or the principles of community life”, and a juridical act contrary to those principles is invalid (Article 58 § 2). A clause imposed unilaterally in a template which shifts onto the contractor the consequences of defective design on the employer’s side is in our view difficult to defend — one party transfers the risk of its own errors to the other and itself dictates the terms of that transfer. A risk assumption negotiated individually, expressly named and visible in the contract is assessed differently. Such a stipulation is in principle effective, because a transparent, individually agreed allocation of risk falls within freedom of contract.

Even an effective clause has material limits. A contractor can rationally assume a risk that can be identified and estimated on a careful analysis of the documents. It cannot, by contrast, sensibly assume a risk undefined as to type and magnitude, which nobody is able to price at tender stage — no reasonable margin will offset such an „assumption”, and the clause becomes a calculational fiction. A simple proportion applies here: the broader and less defined the risk a clause is to transfer, the more unambiguous its wording must be. „Turnkey” therefore does not mean „everything” — it means as much as follows from the whole contract and from what a diligent analysis of the documentation allowed to be identified as missing.

In public procurement a statutory argument has been added. The subject matter of the contract is to be described „in an unambiguous and exhaustive manner” (Article 99(1) of the Public Procurement Law), and the draft contractual provisions may not provide for „the contractor’s liability for circumstances for which the employer bears exclusive liability” (Article 433(3)). A clause burdening the contractor with the consequences of defects of the documentation supplied by the employer collides head-on with that prohibition. In practice courts rarely rule expressly on the invalidity of such clauses — more often they simply pass over them when deciding, as in disputes over unforeseen ground conditions.

The lump sum works both ways

The fixity of the price does not protect an employer who received less than it ordered:

„[W]here the contractor has not performed all the works for which lump-sum remuneration was stipulated in the contract, that remuneration is subject to proportionate reduction corresponding to the extent of the part not performed, which does not negate the lump-sum character of that remuneration.”

— judgment of the Supreme Court of 25 March 2015, II CSK 389/14, LEX No. 1657595

Since the price is tied to the scope firmly enough that curtailing the scope reduces the price, consistency requires that exceeding the scope increases it. The Supreme Court confirms that symmetry from the contractor’s side as well:

„The construction of lump-sum remuneration — as is also emphasised in the literature — does not therefore exclude a claim by the contractor for remuneration for works not covered by the contract.”

— judgment of the Supreme Court of 9 October 2014, I CSK 568/13, LEX No. 1541043

The lump sum therefore closes the dispute over the price of the agreed scope — it does not close the dispute over what fell within the agreed scope. We discuss the map of the legal bases for payment for works outside the scope in the pillar article on additional works.

Practical conclusions

For the contractor. Price the scope from the design, not from the bill of quantities — under a clause on the auxiliary character of the schedules it is the design that defines the obligation, and an element shown on a drawing but omitted from a table enters the scope anyway. Compare the drawings, the technical descriptions, the specifications and the schedules, and report every discrepancy you notice to the employer in writing before submitting the tender — a discrepancy passed over in silence ceases to be an argument. Ask expressly about accompanying and temporary works if the specifications do not describe them. Do not sign declarations on the completeness of the documentation or the sufficiency of take-offs which you have not verified — the case law takes them seriously. Check whether the contract establishes a hierarchy of documents, and if not — propose one. During execution treat every item of work outside the documentation as a potential claim and document it from day one.

For the employer. Completeness clauses will not replace reliable documentation, because doubts that cannot be removed will come back to their author. If you opt for a detailed description, you answer for its correctness — and if you want to transfer the completeness risk, do it through a genuinely functional description of the subject matter, not through a sentence glued onto a finished design. List the accompanying and temporary works in the specifications, because the regulation requires it — and because a dispute over them costs more than describing them.

Frequently asked questions

Does the bill of quantities bind at all under a lump sum?

As to quantities usually not — quantity differences within works described in the design burden the contractor, and under a lump sum the employer may not attach a bill of quantities at all (§ 4(3) of the Regulation of 20 December 2021, Dz.U. item 2454). The bill nevertheless remains material for interpreting the contract and evidence of what the employer did not foresee. Beware of the reverse direction: an element shown in the design but omitted from the bill still enters the scope (Article 649 of the Civil Code).

The contract is called „turnkey”. Does that mean everything is in the price?

No. One has to check how the specific disputed area was described. Where the employer imposed detailed solutions, it answers for their correctness, and the turnkey formula does not change that. The completeness risk passes to the contractor in real terms only where it is the contractor that designs the path to the result.

Must the contractor check the design supplied by the employer?

Only within the limits of Article 651 of the Civil Code: it must report defects discernible without specialist design knowledge. The Supreme Court expressly rejects a duty to check the documentation in detail in order to detect its defects, because the contractor need not have design expertise (II CSK 101/08). The limit, however, is a discrepancy visible on an ordinary careful reading — that must not be passed over in silence.

Is a declaration „I have reviewed the documentation and consider it complete” binding?

It binds to the extent it concerns circumstances the contractor could identify on a careful analysis of the documents — the case law refused payment to a contractor who declared that the quantities from the employer’s take-off would suffice and later claimed remuneration for works not included in it (II CSK 101/08). It does not, by contrast, transfer the designer’s responsibility to the contractor, because the contractor has neither the duty nor usually the competence to verify someone else’s design.

Are temporary and accompanying works included in the lump-sum price?

In principle yes, if they are needed for the principal works — but they are not in the bill of quantities (§ 9(2) of the Regulation), and their listing should appear in the technical specifications (§ 14(1)(2)(b)). If the specifications do not describe them, the view can be defended that they were not covered by the description of the subject matter of the contract — which is why it is worth asking about them in writing before pricing.

What if a drawing shows something different from the technical description?

First check the contractual hierarchy of documents. Absent one, the specific provision prevails, and in the drawing-versus-description relation priority for the descriptive part as the later document is justified. Report the discrepancy in writing before pricing, because after signing the contract silence about it works against the contractor.

Quotations from Polish judgments and legislation have been translated by the author. All translations are unofficial.

State of the law: 2 August 2026.

Author: Artur Barczewski PhD — Polish attorney-at-law (radca prawny), conducts construction payment disputes for contractors and employers alike. About the author · Discuss your case →