The Public Procurement Office has recently published a set of sample indexation clauses drawn up by IT sector organizations on its website. This is a document intended primarily as an aid for contracting authorities, as they have an obligation to include these clauses in public tender agreements.

On 13 July, 2023, a document entitled IT sector practices for drafting indexation clauses under art. 439 of the Public Procurement Law for IT service tenders was published on the Public Procurement Office website. The document was posted in the Industry Practices Forum section, which is for content that is not produced by the Public Procurement Office but by organizations that are active in a particular sector and wish to play a part in devising good public procurement law practices.

The paper includes sample indexation clauses for the IT sector drawn up by five organizations in the industry, and has been designed to

enable contractual clauses amending a contractor’s remuneration to be implemented with ease into any agreement concerning the following:

  • implementing an IT solution,
  • IT services, i.e. maintenance, development, or body leasing,
  • IT services provided in data processing centers such as colocation or infrastructure-as-a-service;
  • IT hardware supply, and
  • telecommunications services.

The paper is divided into two sections, each containing sample clauses for the types of agreements mentioned above. The differences between them lie in the macroeconomic indicators used in them.

The first set uses the consumer price index (CPI, also known as inflation) and is the easiest to use, while in the view of the authors this might not be the best reflection of the true factors that lead to adjustment of a contractor’s remuneration.

The second set uses the sold production of industry index (PPI), which means that it should provide a better picture of cost drivers, but the drawback in this case is that it is more difficult to apply.

The paper was the product of joint editorial work by Agnieszka Wachowska, attorney-at-law and head of the TKP IT – Tech and Public Procurement Law team, who worked on the paper through her role at the Polish Chamber of Information Technology and Telecommunications (PIIT).

One final remark – under art 439 of the Public Procurement Law, contracting authorities are required to include clauses, which are mandatory, on indexation in agreements for construction work or supplies or services concluded for a term exceeding six months.