School keeps solar delay penalty set-off; contractor claim fails

UAB "Informacinių technologijų pasaulis" undertook to design and build a solar plant on the Vilniaus rajono Pagirių gimnazija roof under contract Nr. CPO187609-23553 of 23 November 2021. Design was due within two months, to 23 January 2022, and construction within the remaining seven months, to 23 August 2022. Annex Nr. 1 of 11 November 2022 extended performance to 21 April 2023 and annex Nr. 2 of 27 April 2023 to full performance, each providing that 0.05 percent daily penalties under clauses 9.10 and 9.11 accrue for the whole extended periodTeismai. Design finished on 18 May 2023 with the expert report and works on 17 August 2023 with acceptance act Nr. 230817/1; the school became a generating consumer on 6 September 2023 and received a 59,991.80 Eur invoice on 30 August 2023.

On 4 October 2023 the school assessed 8,779.32 Eur in penalties for 358 days of works delay and 479 days of design delay, and by letter and payment of 6 October 2023 set them off against the works priceTeismai, paying 51,212.48 Eur. The contractor sued to apply the six-month limitation for penalty claims, annul 4,465.86 Eur of the set-off and recover that sum as debt with 5 percent interest, arguing penalties beyond 180 days were time-barred. The Vilnius Regional Court by judgment of 2 April 2026 granted that claim, cut the penalties to 180 daysTeismai, annulled the 4,465.86 Eur set-offTeismai and dismissed the school's counterclaim for electricity-purchase lossesTeismai.

The Lithuanian Court of Appeal, by Nutartis Nr. e2A-552-1097/2026 of 12 November 2026, changed the judgment: the contractor's claim was dismissedTeismai and the counterclaim dismissal was left standingTeismai. The extensions did not amend the imperative limitation rules; they extended the performance period on condition that penalties accrue until final performanceTeismai. A valid contract has the force of law, and a contractor that signed extensions accepting penalties for the whole delay cannot use limitation to rewrite that bargain. Limitation for the penalty could only run once the delay period became certain after completion, and no term required the school to demand payment every 180 days. The school was not a passive creditor: it had secured its right in the extensions and calculated and set off the penalties on 4–6 October 2023, before any limitation for the disputed part had expired. The first-instance court's imprecise language about reducing penalties did not make a surprise judgment, because it decided the limitation and set-off issues the parties had argued.

The school's counterclaim for extra electricity costs failed for lack of proofTeismai. The tables did not isolate the delay period, used an unjustified flat daily output despite weather variation, and omitted components the court identified, and no expert evidence was ordered. First-instance costs were cancelled and 15.86 Eur of postal costs split equally, while the contractor must reimburse the school 1,788.64 Eur of appellate costs reflecting 66.67 percent success. Advisers extending works deadlines should state expressly that penalties accrue to final handover and keep delay-period energy records capable of proving loss. Legal basis: Civilinis kodeksas 1.125(5) and (13), 1.127, 6.71, 6.130–6.131 and 6.189(1); Civilinio proceso kodeksas 326(1) and 331.