DZP recovers funds from undue guarantee call for OHL

In February 2013, the company Obrascón Huarte Lain (OHL) in consortium with two other entities carried out a project for Gdańsk City Municipality - Gdańskie Inwestycje Komunalne sp. z o.o. entitled Construction of a road link between Gdańsk Airport and the Port of Gdańsk - Trasa Słowackiego, Task II, ul. Potokowa - Al. RzeczpospolitaSection. OHL provided a bank guarantee for proper performance of contract that clearly listed the circumstances in which it could be enforced.

Less than a month before the guarantee expiry date, the municipal company sent the guarantor a demand for payment to be made under the guarantee but without indicating what OHL's alleged failure to perform its contractual obligations involved. The guarantor met the demand.

After an attempt to resolve the dispute amicably failed, OHL filed a claim for payment with the Regional Court in Gdańsk against the contracting authority for redress of damage. The court issued an order for payment to be made to OHL against which the municipal company appealed.

During the process, OHL proved that the contracting authority had had no grounds for demanding payment under the guarantee and thus that the municipal company was in breach of the contract, leading to damage to OHL. On 30 January this year, the court generally upheld OHL's claim in full, though the judgment is not yet final and non-revisable.

The case was handled by Dr Bartosz Karolczyk, Associate in DZP's Dispute Resolution Practice, under the guidance of Paweł Lewandowski.