Act CXXIX of 2003

on Public Procurement

(NOT OFFICIAL TRANSLATION)

Table of Contents

 

 
 

 

 

 

 

 


PART ONE - GENERAL PART     …………….4

CHAPTER I - BASIC PROVISIONS........... 4

CHAPTER II - DEFINITIONS...................... 5

CHAPTER III - COMMON PROVISIONS CONCERNING PUBLIC PROCUREMENT AND CONTRACT AWARD PROCEDURES.......................................................................... 10

 

PART TWO - PROVISIONS RELATED TO PUBLIC PROCUREMENTS REACHING COMMUNITY THRESHOLDS……………..                                                                                   16

CHAPTER IV................................................. 16

CONTRACT AWARD PROCEDURES IN GENERAL      16

Title 1 - The scope of application of this Chapter      16

Title 2 - General rules for contract award procedures                23

Title 3 - Open procedures..................... 25

Title 4 - Overall rules of two-stage procedures             46

Title 5 - Restricted procedures............. 54

Title 5/A - Competitve dialogue.......... 55

Title 6 - Negotiated procedures........... 58

Title 7 - Accelerated procedures.......... 63

Title 7/A - Framework agreement procedure               64

Title 8 - Special rules pertaining to public works concession    676

Title 9 - Simplified procedure.............. 69

Title 10 - Rules concerning design contests  73

CHAPTER V - SPECIAL CONTRACT AWARD PROCEDURE FOR ENTITIES

OPERATING IN THE WATER, ENERGY, TRANSPORT AND POSTAL SERVICES SECTORS         74

Title 11 - The scope of application of this Chapter    74

Title 12 - General rules concerning special contract award procedures  80

Title 13 - Open procedure..................... 82

Title 14 - Restricted and negotiated procedures launched by a notice for invitation to participate                85

Title 15 - Restricted and negotiated procedures invited by way of a periodic indicative information notice               86

Title 16 - Restricted and negotiated procedures published by means of prequalification notices   88

Title 17 - Negotiated procedure without a notice        92

Title 18 - Framework agreement procedure 95

Title 19 - Simplified procedure............ 97

Title 20 - Rules governing design contests    97

 

PART THREE - PROVISIONS CONCERNING PUBLIC PROCUREMENTS OF A VALUE REACHING THE NATIONAL THRESHOLD........................................................ 97

CHAPTER VI - GENERAL CONTRACT AWARD PROCEDURE                97

Title 21 - Scope of application of the chapter             97

Title 22 - General rules of public procurement            100

Title 23 - Open procedure.................. 101

Title 24 - General rules applicable to two-stage procedures      103

Title 25 - Restricted procedure.......... 103

Title 25/A - Competitive dialogue.... 103

Title 26 - Negotiated procedure........ 103

Title 27 - Accelerated procedure....... 104

Title 28 - Framework agreement procedure 104

Title 29 - Special rules pertaining to public works  concession 104

Title 30 - Special rules for service concessions            105

Title 31 - Simplified procedure.......... 105

Title 32 - Rules applicable to design contests              105

CHAPTER VII - SPECIAL CONTRACT AWARD PROCEDURE APPLICABLE TO CERTAIN ORGANISATIONS OPERATING IN THE WATER, ENERGY, TRANSPORT AND TELECOMMUNICATION SECTORS             106

Title 33 - Scope of application of the chapter             106

Title 34 - General rules of special contract award procedure   107

Title 35 - Open procedure.................. 109

Title 36 - Restricted and negotiated procedures launched by a notice containing an invitation

to participate...................................... 1109

Title 37 - Restricted and negotiated procedures announced in a notice containing an indicative periodic information notice................................................................ 110

Title 38 - Restricted and negotiated procedures announced in a prequalification notice  110

Title 39 - Negotiated procedure without the prior publication of a

tender notice......................................... 111

Title 40 - Framework agreement procedure 111

Title 41 - Simplified procedure.......... 111

Title 42 - Rules applicable to design contests              112

 

PART FOUR - PROVISIONS APPLICABLE TO PUBLIC PROCUREMENT BELOW THE NATIONAL VALUE THRESHOLD  112

Title 42 - Scope of application of Part Four 112

Title 44 - Regular public contract award procedure   114

Title 45 - Rules applicable to regular design contest procedure               116

 

PART FIVE - AMENDMENT AND PERFORMANCE OF CONTRACTS CONCLUDED PURSUANT TO A PUBLIC CONTRACT AWARD PROCEDURE, AUDIT OF PUBLIC PROCUREMENT        116

Title 46 - Amendment and performance of contracts               116

Title 47 - Audit of public contract award procedures 118

 

PART SIX - ATTESTATION........................... 119

 

PART SEVEN - JUDICIAL REMEDIES AVAILABLE FOR  PUBLIC PROCUREMENT         121

CHAPTER VIII - GENERAL PROVISIONS APPLICABLE TO JUDICIAL REMEDIES        121

CHAPTER IX - PROCEDURE OF THE ARBITRATION COMMITTEE FOR PUBLIC PROCUREMENT, JUDICIAL REMEDIES CONCERNING ITS RESOLUTIONS...... 121

Title 48 - General provisions.............. 121

Title 49 - Public procurement commissioners              122

Title 50 - Procedure of the Arbitration Commission for Public Procurement       123

Title 51 - Review of decisions of the Arbitration Committee for Public Procurement        131

CHAPTER X - CIVIL ACTIONS RELATED TO PUBLIC

PROCUREMENT........................................ 133

CHAPTER XI - GENERAL CONCILIATION     133

Title 52 - Scope of application and purpose of conciliation procedures               133

Title 53 - Conciliators and their activities     133

Title 54 - The conciliation

procedure.............................................. 136

CHAPTER XII - SPECIAL CONCILIATION     138

CHAPTER XIII - PROCEDURE OF THE EUROPEAN COMMISSION      1397

 

PART EIGHT - THE PUBLIC PROCUREMENT COUNCIL              140

 

PART NINE - FINAL PROVISIONS............. 150

 

ANNEXES

 

                Annex 1 to Act CXXIX of 2003 on Public Procurement……………….154

Annex 2 to Act CXXIX of 2003 on Public Procurement……………….158

Annex 3 to Act CXXIX of 2003 on Public Procurement……………….164

Annex 4 to Act CXXIX of 2003 on Public Procurement……………….166

Annex 5 to Act CXXIX of 2003 on Public Procurement……………….167

Annex 6 to Act CXXIX of 2003 on Public Procurement……………….167

 

 


Act CXXIX of 2003

on Public Procurement*

 

 

With a view to providing for transparency and extensive public control in the reasonable use of public monies, furthermore with a view to ensuring the fairness of competition in the course of public procurement, in accordance with applicable international agreements and European Community legislation in the field of public procurement, the Parliament hereby adopts the following Act:

 

PART ONE

 

GENERAL PART

 

CHAPTER I

 

BASIC PROVISIONS

 

Principles

 

Article 1

 

1.     In the course of the contract award procedure, including the conclusion of the relevant contract, the contracting authority shall be obliged to ensure the fairness and public nature of the competition, which the tenderer shall be obliged to respect.

 

2.     The contracting authority shall make sure that tenderers are given equal opportunities and equal treatment.

 

3.     In the course of the contract award procedure, national treatment shall be applied to tenderers established in the European Union as well as to Community goods. As regards tenderers established outside the European Union and as regards non-Community goods, national treatment is to be applied in accordance with the international obligations assumed by the Republic of Hungary and the European Community in the field of public procurement.[1]

 

The scope of the Act

 

Article 2

 

1.     This Act shall apply to contract award procedures that entities, defined as contracting

 

authorities, are obliged to carry out in order to conclude contracts for pecuniary interest with a view to realising purchases of specific subject and value (public procurement). This Act shall also apply to the special rules for remedies related to public procurement.

 

2.     As regards public contracts of a value reaching or exceeding the value thresholds laid down by the European Community (hereinafter referred to as ‘Community thresholds’), Part Two of this Act shall be applicable, as regards public contracts with a value below the Community thresholds but reaching or exceeding the national thresholds, Part Three shall be applicable, while in case of public contracts with a value below the national thresholds Part Four shall apply, unless provided otherwise herein.

 

3.     In addition to being governed by applicable legislation, specific design contest procedures shall be subject to this Act as well.

 

4.     With respect to entities (persons) applying this Act voluntarily, all regulations set forth herein shall be applicable.

 

Article 2/A

 

1.     For the purposes of Article 2 (1) an agreement shall not be considered a contract

 

(a)   that is concluded between a contracting authority according to Article 22 (1) and an economic operator 100 % owned by that authority, over which the contracting authority fully possesses comprehensive management and supervisory rights in relation to strategy and management tasks, with consideration to the liability set out in law for implementing a public task or a public service, or for organizing such implementation, under the condition if

 

(b)   at least 90% of the annual net revenue of that economic operator is derived from a contract concluded with the single member (shareholder) contracting authority. The counter value of public services provided to third parties on the basis of the contract shall be regarded as deriving from the contract regardless whether this counter value is paid by the contracting authority or by the person using this public service.

 

2.     The provisions set out in paragraph 1 shall be applicable if in the economic operator, according to paragraph 1 point (a), the business stake or shares that personify the membership rights are jointly owned by several organizations that qualify as contracting entities according to Article 22 (1); in this case the rights shall be exercised through a joint representative.

 

3.     The provisions set out in paragraph 1 shall be applicable if the economic operator according to point (a) of paragraph 1 is owned by the state; in this case the additional conditions according to point (a) of paragraph 1 shall be applicable with relation to the legal entity (the minister, or in case of the director of a national authority, the authority managed by the director[2]) as a contracting entity.

 

4.     If law shall not set out different provisions the contract shall be concluded for a definite term of time that shall not be more than three years; the contract may be extended without a public procurement procedure if the conditions set out in paragraph 1 shall be fulfilled.

 

5.     The contracting entity shall prepare at least once in every three years, with the input of an independent expert, an impact analysis that shall review the experience of the execution of the contract as set out in paragraph 1, the quality and efficiency (direct and indirect costs) of the economic activity performed in the context of implementing the public task or public service, and whether the voluntary public procurement procedure, conducted according to Article 2 paragraph 4  was justified or not.

 

The nature of rules provided for in this Act

 

Article 3

 

Derogations from the provisions of this Act shall be allowed only in so far as such derogations are explicitly provided for by this Act.

 

CHAPTER II

 

DEFINITIONS

 

Article 4

 

For the purposes of this Act the following terms shall be defined as follows:

 

1.     ‘tenderer’: any natural or legal person, any company without legal personality or any entity which has legal capacity under its personal right, who or which submits a tender in a contract award procedure; Hungarian branches of undertakings with a company seat registered in a foreign country shall also be considered tenderers;

 

2.     ‘subcontractor’: an organization or person with which the tenderer intends to sign or modify a contract with the specific purpose of delivering a contract concluded in a public contract award procedure, unless such organization or person performs its activity on the basis of exclusive right.

 

2/A.    ‘procurement related to fundamental security interests of the country’: any procurement directly linked to procuring public works, to the supply of goods, and to the provision of services, the subject-matter of which exercise an influence on the physical, environmental, health, economic, home defense security of the population, including procurement in the benefit of preventing immediate flood damages in times of flooding emergency alert preparations;

 

2/B.  ‘banking secret’: a term as defined in the Act on crediting institutions and financial undertakings;

 

2/C.[3]   ‘dynamic procurement system’: a completely electronic process for implementing frequently recurring public procurement, whose attributes concur with requirements laid down by the contracting entity, and which operates for a definite time period, during this time period entry into this system may be requested by any tenderer that, or who meets compliance conditions, is not under the force of a reason for exclusion, and has submitted prior an offer according to the documentation;

 

3.     ‘universal postal service’: a term as defined in the Post Office Act;

 

3/A.[4]   ‘electronic auction’: a repeated process forming a part of the public procurement procedure that, following the evaluation of tenders according to Article 81 (4), allow the presentation of a new tender more favourable with respect to the amount of the counter value, as well as to the specific substantial elements of the evaluation criteria for the tender, together with ranking the tenders applying electronic means, automatically;

 

3/B.    ‘electronic telecommunication service’: a term as defined in the Act on electronic telecommunications;

 

3/C.    ‘electronic means’: application of wired, wireless, optical, or any other electromagnetic tools for data processing, data storing, data forwarding;

 

4.     ‘European technical approval’: a favourable technical assessment of the fitness for use of a product, based on fulfilment of the essential requirements for building works, by means of the inherent characteristics of the product and the defined conditions of application and use. The European technical approval shall be issued by an approval body designated for this purpose by the Member State of the European Union;

 

5.     ‘European standard’: a term as defined in the Act on national standardization;

 

6.     ‘European Union and Member States of the European Union’: the European Economic Area and the states that are signatories to the Agreement on the European Economic Area, except in respect to Article 29 (1) (d) and Article 175 (b).

 

7.     ‘work’: a term as defined in the Act on the Development and Protection of the Man-made Environment;

 

8.     ‘value analysis’: a method for decision-making, used to analyse the relationship between the function and the production or implementation cost, purchase price and operating cost of the product, service or public works;

 

9.     ‘false data’ – false representation of a known fact;

 

9/A .   ‘network terminal point’: a term as defined in the Act on electronic telecommunications;

 

10.  ‘budgetary authority of a local government’: mayor’s offices, local government offices at county level, clerks’ groupings, offices of joint boards of representatives of local government, as well as any other budgetary authorities supervised by the board of representatives of a local government, including associations of local authorities for official administrative purposes, for institutional cooperation, or any other associations of an administrative nature;

 

11.  ‘relative’: any person as defined in Article 685 (b) of the Act IV of 1959 on the Civil Code (hereinafter referred to as the ‘Civil Code’);

 

11/A. in written form, in writing’: any form of expression constituted of words or digits that can be read, and be reproduced and as such may be circulated; it may contain data stored and communicated electronically, particularly declarations delivered in a letter, a cable, by telex machine, and by fax, and, furthermore, declarations incorporated in electronic documents supplied with an electronic signature that has a graded security level;

 

12.  ‘framework agreement’: an agreement between one or more contracting authorities and one or more tenderers, the purpose of which is to establish the substantial terms and conditions governing the public contracts to be signed between the parties in a specific manner during a given period, in particular with regard to the counter value and, if possible, the quantity envisaged;

 

13.  exclusive right’: any right granted on the basis of law or of administrative decision to a single entity (or person), or to a limited number of entities (or persons) to perform a specific activity or action, in accordance with the Treaty establishing the European Communities, except regarding the application of Article 125 (2) (b) and of Article 225 (1) (b), furthermore unless this Act shall not provide differently (Article 166);

 

14.  ‘preparation of public contract award procedure: completion of the activities required for launching the relevant contract award procedure, including in particular the assessment and market survey relevant to the public contract in question, the assessment of the estimated value of the public contract and preparation of the tender notice launching (announcing) the procedure, and preparation of the invitation to tender and tender specifications;

 

15.  ‘technical specifications for public procurement’: the entirety of the technical prescriptions contained, in particular, in the tender documentation needed for submitting tenders, that defines the characteristics required by the subject-matter of a public contract, permitting the subject-matter of a public contract to be described in a manner that it shall fulfill the purpose required by the contracting authority; the technical prescriptions shall include the definitions of environmental performance, of appropriately developing every requirement - in particular the criteria of equal access to the services by handicapped persons, including the requirements applicable to the subject matter of a public contract as regards terminology, symbols, testing and test methods, packaging, marking, labeling, users’ manuals, manufacturing processes and methods; in the case of public works these shall also include rules relating to quality assurance, to design and to costing, the conditions for testing, inspecting and accepting the works, the construction methods and technologies, and all other technical conditions, which the contracting authority is in a position to prescribe through general or specific requirements pertaining to the works completed  and the material and parts incorporated; in case of supply of goods or provision of services  these shall also contain requirements related to quality, performance, the purpose of the product in question, and to the appropriate liability certification system;

 

16.  ‘activities of general interest’: activities in the public interest within the meaning of the Act on Organisations Operating in the Public Interest, as well as other activities having the purpose of meeting needs in the general interest or public service activities;

 

17.  ‘common technical specification’: a technical specification laid down in accordance with the procedure recognized by the Member States of the European Union, and that has been published in the Official Journal of the European Union;

 

18.  ‘Community goods’: a term as defined in Council Regulation 2913/92/EECon the Community Customs Code;

 

19.[5]

 

20.[6] ‘central budgetary authority’: Ministries, authorities having a separate budget heading in the central budget, as well as other bodies with budget heading rights stipulated in separate act of legislation, furthermore any budgetary authority operating under the supervision of either of the former entities, the Government or a designated member thereof;

 

21.  ‘instrument of constitution’: an instrument required by law for the constitution of a company or firm (organisation) with or without legal personality;

 

22.  ‘dominant influence’: it can be exercised by an entity which meets at least one of the following conditions in relation to another entity:

 

(a)    it alone controls the majority of the votes of members (shareholders) by virtue of its share owned in that entity,

 

(b)    it alone controls the majority of the votes, pursuant to an agreement it has concluded with other members (shareholders) or secured in any other manner,

 

(c)     as a member (shareholder) it is entitled to elect (appoint) or recall more than half of the entity’s chief officers (managers) or members of the entity’s supervisory board (supervisory body).

 

23.  ‘restricted procedure’: a contract award procedure whereby only those invited by the contracting authorities – in accordance with the provisions herein – may submit tenders;

 

23/A.  ‘technical recommendation’: any document issued by the European Standardization Organization that is not a standard, that has been developed in course of a regulated procedure, in order to satisfy requirements of the market;

 

24.  ‘national standard’: a term as defined in the Act on National Standardization;

 

24/A. ‘international standard’: a term as defined in the Act on National Standardization;

 

25.  ‘international organisation’: a legal entity under international law, constituted by an international agreement, which has a permanent organisational structure operating with a specific purpose and the scope of activities of which covers more than one state;

 

26.  ‘open procedure’: a contract award procedure whereby all those interested may submit tenders;

 

27.  ‘public electronic telecommunication service’: a service normally provided to other parties in exchange for certain fees and charges, comprised fully or predominantly of the transmission of signals via public electronic telecommunication networks and, where applicable, the management thereof; such services however, shall not include services providing contents transmitted using public electronic telecommunication network and electronic telecommunication services, or exercising editorial control over such contents, furthermore they shall not include such services associated with the information society defined in other legal acts that do not principally involve the transmission of signals  via public electronic telecommunication networks; such services moreover exclude broadcasting and programme distribution services;

 

28.  ‘public electronic telecommunication network’: a term as defined in the Act on Electronic Telecommunication;

 

29.  ‘tax authority at the local government’: as defined in the Act on the Order of taxation;

 

30.  ‘participant in a design contest’: any natural or legal person, company without legal personality or entity which has legal capacity under its personal right, who or which submits a tender in a design contest procedure; Hungarian branches of undertakings with a company seat registered in a foreign country shall also be considered as participants in a design contest;

 

30/A.  ‘postal services’: a term as defined in the Act on Postal Services, under the condition that the weight limits defined thereto shall not be applicable;

 

30/B. ‘services differing from postal services’:

 

(a)    mail-service management services (mail management services both preceding and subsequent to dispatch);

 

(b) added-value services linked to and provided entirely by electronic means (including the secure transmission of coded documents by electronic means, address management services, and transmission of registered electronic mail);

 

(c)     services concerning postal items not included in point 30/A (such as direct mail bearing no address);

 

(d)    financial services as defined in Group 6 of Annex III, and point (b) in Article 174, including in particular postal money orders and postal giro transfer intermediary activities;

 

(e)     philatelic services;

 

(f)     logistics services concerning postal parcels (services combining physical delivery or warehousing with other non-postal functions);

 

31.  ‘candidate’: any natural or legal person, any company without legal personality or entity which has legal capacity under its personal right, who or which seeks an invitation to take part in the first stage, that of participation, of a contract award procedure consisting of two stages; Hungarian branches of undertakings with a company seat registered in a foreign country shall also be considered candidates;

 

32.         

 

33.  ‘standard’: a term as defined in the Act on National Standardization;

 

33/A.[7]organization possessing social employment permit’: a term as defined in the Government Decree, containing the rules concerning the granting of permission for and the exercising of supervision over social employment, and/or applying for social employment support and supervising the use of such support, which is issued on the basis of the Act on Social Management and Social Care,;

 

34.  ‘aid/support’: the granting of funds or other pecuniary benefits to the contracting authority for the performance of the public procurement contract, excluding tax incentives and the provision of guarantee;

 

35.  ‘negotiated procedure’: a contract award procedure whereby contracting authorities negotiate the terms of the contract with one or more of the tenderers of their choice, in compliance with the provisions herein;

 

36.  ‘design contest’: a special form of tender for design projects regulated in detail in separate legislation, whose purpose is to prepare design activities and to select the designer based on the tendered designs;

 

36/A. ‘competitive dialogue’: a public procurement procedure, in which the contracting authority shall conduct with the candidates they select according to the provisions in this Act, a dialogue the aim of which shall be to identify exactly the subject-matter of the public procurement, and/or the type of and the conditions for the relevant contract, within the frame of conditions as defined by the contracting authority;

 

36/B.[8]sheltered employer, and/or organization having concluded a sheltered organization contract’: a term as defined in the Government Decree on budgetary support provided for the employment of handicapped employees, and on the accreditation of employers employing handicapped employees, and on the rules concerning the supervision of accredited employers;

 

37.  ‘business secret: a term as defined in Article 81 (2) and (3) of the Civil Code.

 

CHAPTER III

 

COMMON PROVISIONS CONCERNING PUBLIC PROCUREMENT AND CONTRACT AWARD PROCEDURES

 

Planning and preparation of public procurement and contract award procedures

 

Article 5

 

1.     The contracting authorities defined in Article 22 (1) – with the exception of contracting authorities acting under Chapters V and VII and entities authorised to publish tenders in the course of centralised public procurements – shall draw up, at the beginning of the budgetary year, preferably by 15 April, an annual overall public procurement plan (hereinafter referred to as ‘public procurement plan’), which shall outline all public procurements envisaged for given year. The public procurement plan shall be retained by the contracting authority for a period of at least five years. Public procurement plans are public.

 

2.     The contracting authority may launch contract award procedures prior to the completion of its public procurement plan, such procedures shall be subsequently included in the public procurement plan as appropriate.

 

3.     A plan shall not entail any obligation to carry out the procedures for the award of contracts included therein. Moreover, contracting authorities may carry out procedures for the award of contracts not included in the procurement plan or for the award of contracts that have been modified as compared to what the plan contains, provided that a need for public procurement or other changes have occurred for reasons unforeseeable by them. In such cases the public procurement plan shall be amended upon the occurrence of such a need or changes, indicating the justification thereof.

 

4.     Contracting authorities shall, upon request, forward their public procurement plans to the Public Procurement Council or to the competent control bodies.

 

Article 6

 

1.     Contracting authorities shall be obliged to determine, in accordance with the relevant legislation, the distribution of responsibilities for the preparation, carrying out and internal control of their contract award procedures, as well as the responsibilities of persons and organisations acting on their behalf or involved by them in such procedures and the documenting procedure applicable to their contract award procedures. In this scope, contracting authorities shall specify in particular the person, persons or bodies responsible for decisions made in the course of the procedure.

 

2.     Where a contracting authority does not have any general rules on public procurement drawn up according to paragraph 1 or fulfils the criteria that allow derogation from such rules as laid down therein, it shall lay down the requirements set forth in paragraph 1 before the preparatory work for the given contract award procedure at the latest.

 

Documentation of the contract award procedure

 

Article 7

 

1.     Contracting authorities shall be obliged to arrange for the documentation in writing of each of their contract award procedures, covering such procedures from the preparatory work up to the performance of the contract concluded on the basis of such procedures.

 

2.     Contracting authorities shall retain all documents created in the course of the preparation and carrying out of the contract award procedure and the performance of the contract for a period of five years following the closure of the procedure (Article 98 (4)) or the performance of the contract. If a procedure has been launched to seek legal remedy in connection with the public procurement, the documents shall be kept until such a procedure is concluded with a judgement which has the force of res judicata, but at least for five years as set out above.

 

3.     Contracting authorities shall, upon request, forward the public procurement documents to the Public Procurement Council or to the competent control bodies or to other competent bodies.

 

Rules related to persons and organisations acting in the name of a contracting authority or involved in a contract award procedure

 

Article 8

 

1.     Persons or organisations acting in the name of a contracting authority or involved in a contract award procedure who or which take part in the preparatory work for the contract award procedure, the preparation of the invitation and the tender specifications, the evaluation of tenders or in any other stages of the procedure, shall be required to possess adequate professional competence in the fields of public procurement and finance relevant to the subject of the public procurement.

 

2.     An organisation acting in the name of a contracting authority or involved in a contract award procedure shall be deemed as fulfilling the requirement contained in paragraph 1 if at least one person possesses adequate professional competence from among those who are members or employees of the organisation and personally contribute to the activities thereof, or from among those acting on behalf of such organisations on the basis of a permanent contract under civil law concluded therewith.

 

3.     Contracting authorities shall set up an evaluation committee of at least three members for the evaluation of the tenders submitted, which shall put forward in writing an expert’s opinion and a proposal for a decision for the person or body making the decision closing the contract award procedure in the name of the contracting authority. The work of the evaluation committee shall be documented by drawing up minutes, such minutes containing the members’ reasoned evaluation sheets.

 

 

 

 

Article 9

 

1.     For public procurement of a value reaching or exceeding the Community threshold (Second Part), and/or when the competitive dialogue is applied and the value of the procurement equals or exceeds the national threshold (Third Part, Title 25/A), the contracting authorities, with the exception of organizations authorized for inviting tenders in centralized public procurement, shall involve in the contract award procedure an official public procurement consultant (Article 11) listed on the registry kept by the Council for Public Procurement, complying at the same time with the requirements as set forth in Article 10 (1) and (2).

 

2.     The official public procurement consultant shall contribute public procurement expertise to the preparation and to the implementation of the contract award procedure. The contracting authority shall involve the public procurement consultant in particular in the preparation of the invitation to tender and of the tender documentation. The official public procurement consultant, and/or in the case of an official public procurement consultant according to Article 11 (3), the person named from the list in the registry kept by the Public Procurement Council, complying with the provisions of Article 11 (2), shall personally participate in executing the duties falling to the public procurement consultant. The public procurement consultant shall be entitled to remuneration for his activity. The consultant’s liability concerning compensation for damages caused by his activity shall be governed by the Civil Code.

 

3.     A public procurement consultant who is involved in the procedure may not act as a conciliator (Article 353) or an attester (Article 309) in relation to the same contract award procedure.

 

Article 10

 

1.     Participation in the preparatory work for the contract award procedure, in the preparation of the invitation and tender specifications or in any other stage of the procedure, by acting in the name of the contracting authority or being involved otherwise, shall not be permitted to economic operators carrying out economic activities related to the subject of the public procurement in question (hereinafter referred to as ‘interested economic operators’), or to any such person or organisation who or which

 

(a)   is engaged in an employment relationship or in a working relationship of any other kind with the interested economic operator;

 

(b)   is a chief officer of the interested economic operator or is on its supervisory board;

 

(c)   owns a share in the interested economic operator;

 

(d)   is a relative of any of the persons referred to in points (a) to (c).

 

2.     Paragraph 1 shall not apply if the interested economic operator acting in the name of the contracting authority or envisaged to be involved in the contract award procedure or, as the case may be, the interested economic operator having a relationship as specified under paragraph 1 (a) to (d) with the person or organisation envisaged to be involved in the procedure, makes a written declaration to the effect that it shall not take part in the procedure concerned as a tenderer or a subcontractor.

 

3.

 

4.     Should a person exercise rights of ownership in the name of the contracting authority in any interested economic operator, such person or his relatives shall not act in the name of that contracting authority in the course of the preparatory work or any other stage of the contract award procedure, except where the interested economic operator concerned declares in writing that it shall not take part in that procedure as a tenderer or a subcontractor. This provision shall apply accordingly to chief officers and supervisory board members of the contracting authority as well as their relatives if the contracting authority owns a share in the interested economic operator.

 

5.     This Article shall not be applicable if, on the basis of law, or of a local government decree issued on the basis of a law, in the contracting authority in question the same body, or a body whose members are, or some are the same, has authority to exercise ownership rights and to bring a decision concerning the contract award, and in the activities concerning the public procurement procedure – besides the decision ending the procedure – no one has participated, who is entitled to exercise ownership rights.

 

6.     In the application of this Article a person (organization) shall not be considered as having been involved in the preparations for a public procurement procedure from whom or from which the contracting authority:

 

(a)   with the aim to assess the situation, or the market position concerning the public procurement in question, without indicating the date when the public procurement will start,  requested information providing exclusively the data needed for the assessment, or

 

(b)   received an offer needed for submitting a request (application) for support,

 

under the condition that in the context of point (a) and point (b) the contracting authority has not provided any information exceeding the framework of the data, which was provided for all tenderers (candidates).

 

7.     The person acting on behalf of the contracting authority, and/or the person or organization involved in the procedure shall provide a declaration concerning a conflict of interests with respect to this Article. In the cases provided for in paragraph 2 or paragraph 4, the declaration of the concerned economic operator that he is not participating either as tenderer or as sub-contractor in the procedure (nonappearance declaration) shall be attached to the declaration concerning a conflict of interests.

 

8.     In case there shall be an infringement of paragraphs 1, 4, or 7, or in spite of the declaration provided according to paragraph 4 the concerned economic operator participates in the public procurement procedure, in the course of the subsequent stages of the procedure the concerned economic operator shall not be either tenderer or sub-contractor, who has relations with persons and organizations under the provisions of or listed in paragraph 1, according to points (a) to (d) of paragraph 1.

 

The official public procurement consultant

 

Article 11

 

1.     An official public procurement consultant is a person who figures on the list of names of official public procurement consultants kept by the Public Procurement Council (Article 380).

 

2.     A person may be included in the list of names of official public procurement consultants who holds a degree in higher education and has at least three years of professional experience, and in addition not less than three years of experience in public procurement certified in accordance with relevant legislation, or with a state-approved professional qualification together with at least two years of experience in public procurement, certified in accordance with relevant legislation.

 

3.     Any entity that has at least one person among its members or employees, or among those acting in the name of the entity on the basis of a permanent contract under civil law, which fulfills the criteria set for the in paragraph 2, may also be registered in the official list of names of public procurement consultants.

 

4.     Inclusion of persons, or in the case of an entity according to paragraph 3 shall also be subject to the person or entity possessing liability insurance, the scope of which is specified in a separate act of legislation [Article 404 (2) (d)], unless they shall possess already a liability insurance required by another act of legislation, provided the extent of this is at least equal to that extent set forth in the  separate act of legislation.

 

5.     If a person, who is under a contract to work for a contracting authority, issues a declaration that he performs official public procurement consulting activity exclusively for the contracting authority for who he is contracted to work, it shall be sufficient for entering this person into the list of names of official public procurement consultants if this person complies with the provisions set forth in paragraph 2, and certifies his employment relations with the contracting authority.[9]

 

6.     Persons licensed to operate as attorneys at law or legal counsels may also act as official public procurement consultants, provided that they fulfil the criteria set out in this Article.

 

7.     Official public procurement consultants may only pursue the activities referred to in Article 5 (1)-(2) of Act XI of 1998 on Legal Practitioners if they are otherwise authorised to pursue such activities.

 

Official list of approved contractors

 

Article 12

 

1.     The official list of approved contractors (hereinafter referred to as the ‘list’) shall be maintained by the Public Procurement Council (Article 386–391).

 

2.     Conditions for inclusion of tenderers in the list (hereinafter referred to as ‘criteria for approval’) and ways of certification of such registration shall be laid down and published in the Public Procurement Bulletin by the Public Procurement Council pursuant to Article 60 (1) (a)–(d) and (f)–(g), Article 61 (1), Article 63 (2), Articles 66–68 and Article 69 (1)–(3). When laying down the criteria for approval, the Public Procurement Council shall be entitled to choose from the above-referred criteria.

 

3.     In laying down the criteria for approval, there shall be no discrimination of tenderers based on either their seat or their place of establishment, or in any other way.

 

Article 13

 

1.     Approved contractors are entitled to submit in the course of the contract award procedure a certificate of registration issued by the Public Procurement Council. This certificate shall state a reference to compliance with the criteria for approval and the classification given in that list.

 

2.     Contracting authorities shall accept the certificate of registration in their contract award procedures.

 

3.     Approved contractors shall be required to furnish a separate certificate under Article 63 or to make a declaration in writing stating that they do not fall within the scope of Article 60 (1) (e) and, if the contracting authority so prescribes, within the scope of Article 61 (2).

 

4.     Approved contractors shall also be required to furnish a separate certificate concerning their suitability to the fulfil the relevant contract if the contracting authority in its contract award procedure or in the pre-qualification system (Articles 215–219) lays down, pursuant to Articles 65–69, such criteria concerning the contractors’ financial and economic standing, technical capacity and professional qualification, as well as for the certification thereof, that are stricter than the criteria for approval laid down pursuant to Article 12 (2). The contracting authority shall make specific reference to the above requirement in the notice (invitation).

 

Article 14

 

1.     Where an approved contractor established in the Republic of Hungary submits in a contract award procedure launched by a contracting authority of another Member State of the European Union a certificate of registration issued by the Public Procurement Council, the certificate shall constitute a presumption of suitability only as regards Article 60 (1) (a)–(d) and (f-h), Article 61 (1), Article 66 (1) (b)–(c), Article 67 (1) (a), (2) (a) and (d) and (3) (b).

 

2.     Paragraph 1 shall apply as appropriate in cases, when a tenderer established in another Member State of the European Union submits, in a contract award procedure of a contracting authority within the meaning of this Act, a certificate issued by an authority, including assurance organizations delegated this task, operating in the State where the tenderer is established, responsible for keeping the list of qualified, or recognized tenderers.

 

Calculation of time limits

 

Article 15

 

1.     Time limits or periods (hereinafter jointly referred to as ‘time limits’) expressed in days, months or years shall be calculated in such a manner that they do not include the starting date. The starting date shall be the date of the event or other circumstance from which the time limit begins to run.

 

2.     A time limit expressed in months or years shall expire on the day which corresponds to the date following that of the starting date; if the month of expiry does not contain such a date, expiry shall take place on the last day of the month.

 

3.     Where the closing date of the time limit is not a business day, expiry shall take place only on the subsequent business day.

 

4.     Time limits fixed in notices (invitations) shall begin to run on the day following the date of dispatch of the relevant notice (invitation).

 

Annual statistical summary

 

Article 16

 

1.     Contracting authorities shall make an annual statistical summary about their annual purchases, based on a model specified in separate legislation, which they shall forward to the Public Procurement Council not later than 31 May of the year following the year to date.

 

2.     The Public Procurement Council shall forward to the European Commission an overall statistical report based on the annual statistical summaries and the notices not later than 31 October of the year following the year to date.

 

3.     Should any contractor fail to furnish its annual statistical summary by the expiry of the time limit set in paragraph 1, the Chairman of the Public Procurement Council shall invite such contractor to furnish its annual statistical summary within thirty days and shall at the same time advise the contractor that his failure to furnish the summary shall result in the ex officio procedure of the Arbitration Board for Public Procurement (Article 328).

 

Centralised public procurement

 

Article 17

 

1.     The Government may order the organisations under its control to execute any public procurement within the framework of a centralised procedure, determining the personal and material scope thereof, the organisations entitled to invite tenders and the conditions to participate in such a procedure.

 

2.     A centralised procedure may be used for health-care services of organisations financed by the Health Insurance Fund. The Government shall be entitled to specify the detailed rules for the procedure, including the personal and material scope thereof and the organisations authorised to invite such tenders. Such centralised public procurements shall be financed from the funds allocated in the budget of the Health Insurance Fund for the type of service in question.

 

3.     The detailed rules pertaining to the centralised public procurement procedure shall be determined in separate legislation.

 

4.     In the case of centralised public procurement procedure, the organisation entitled to invite tenders shall act in compliance with this Act and the above-mentioned separate legislation, also taking into consideration the estimated value of the centralised public contract.

 

 

Public Procurement Reserved for Sheltered

Employers[10]

 

Article 17/A[11]

 

1.     Contracting authorities, according to provisions set out in a separate act of legislation, may reserve the right to participate in a public procurement procedure, or shall reserve this right for organizations that are designated as sheltered employers, for organizations that have concluded a sheltered organization contract, furthermore for organizations possessing a social employment permit, which employ, in a proportion over 50 per cent, disabled persons who cannot carry out occupations under normal conditions, and for organizations providing employment for inmates of social institutions in a framework of social employment, providing work for handicapped persons in a proportion over 50 per cent. Contracting authorities shall refer to this fact in the invitation that starts the procedure.

 

2.     In the case of contracts that are reserved according to paragraph 1, contracting authorities shall ensure equal rights to tenderers established within the European Union that provide employment in a proportion over 50 per cent to disabled workers who cannot carry on occupations under normal conditions.

 

3.     The personal and material scope of, as well as the detailed rules for public procurement procedures reserved according to paragraph 1 shall be set forth in a separate act of legislation.

 

4.     In the application of paragraph 1 contracting authorities, also with consideration to the estimated value of the public procurement, shall act in accordance with this Act and with the relevant separate act of legislation. 

 

Article 17/B[12]

 

1.__Local government may implement public procurement concerning organisations under its control in a locally centralized, combined manner.

 

2.__The provisions of this Act shall apply to locally centralized public procurement procedures.

 

3.__Local government shall promulgate a degree on locally centralized public procurement that shall:

 

(a)__appoint the organization exclusively entitled to invite bids for locally centralized public procurement;

 

(b)__determine the scope of budgetary organizations under the effect of locally centralized public procurement, together with the conditions for access to the procedure;

 

(c)__determine the scope of goods and services under the effect of locally centralized public procurement;

 

(d)__determine the rules for cooperation between the organization exclusively entitled to invite bids and the organizations under the effect of locally centralized public procurement, in particular the data provision obligations of the parties, and the manner in which the data is supplied and managed;

 

(e)__determine the calculation of the fee, and the way this fee is paid to the organization exclusively entitled to invite bids for locally centralized public procurement for only the actually costs of the work on locally centralized public procurement, and the obligation to provide information and briefings for local government.

 

  

Other provisions

 

Article 18

 

Contracting authorities, with the exception of those referred to in Article 22 (2), Article (241) (b)-(c) and Article 293 (b), shall notify the Public Procurement Council of their debts falling under the scope of this Act within thirty days following the date when this Act enters into force pursuant to Article 401 (1) or the date from which such contracting authorities come under the scope of this Act. The Public Procurement Council shall maintain a register of such contractors and publish it on its website, and shall provide further information about the register of contractors as required by the European Commission. Organisations not included in the register but falling under the scope of this Act may be reported to the Public Procurement Council by any person or body.

 

Article 19[13]

 

The Minister of Foreign Affairs, the Minister without Portfolio Responsible for the Co-ordination of European Integration and the Minister of Justice shall issue an information notice about international contracts concluded according to Article 1 (3).[14] The information notice shall also be published in the Public Procurement Bulletin.

 

 

Article 20

 

1.     The procedural actions may also be carried out electronically, subject to the criteria laid down in this Act and in separate legislation.

 

2.     Where this Act prescribes that the contract award procedure must be formally recorded, this criterion may also be fulfilled by recording the actions in a public instrument, provided that the actions take place in the presence of a notary public.

 

3.     When the Act, or on the basis of this Act contracting authorities require the submission of a certificate in the course of the public procurement procedure, such a certificate may be submitted in a simple copy form. In the case of public procurement equal to or exceeding community, or national thresholds (Parts Two and Three), contracting authorities may also request the submission of the certificate in the form of an attested copy.

 

4.     In case the certificate required by this Act is non-existent in the country outside the European Union where the tenderer is established, contracting authorities may accept a certificate, and even a document that is equal to the certificate.

 

5.     In notices regarding public procurement and design contests, in the annual consolidated statistical reports- considering the provisions of this Act, as well as of the separate act of legislation concerning templates for public procurement and design contest notices, on evaluation summaries, and on annual statistical aggregations – the Common Procurement Vocabulary (in the following: CPV) shall be applied in defining the nomenclature position for the subject matter of the procurement (contract).

 

6.     CPV, and conformity between CPV and other nomenclatures, is provided by a Regulation of the European Communities.

 

 

PART TWO

 

PROVISIONS RELATED TO PUBLIC PROCUREMENTS REACHING COMMUNITY THRESHOLDS

 

CHAPTER IV

 

CONTRACT AWARD PROCEDURES IN GENERAL

 

Title 1

 

The scope of application of this Chapter

 

General provisions

 

Article 21

 

1.     Entities (contracting authorities) specified in Article 22 shall act in accordance with this Chapter where

 

(a)   the value of their public procurement covering a given subject equals or exceeds the Community threshold concerned at the beginning of the public procurement;

 

(b)   they conduct a design contest procedure (Title 10) whose value according to Article 33 equals or exceeds the Community threshold concerned at the beginning of the procedure;

 

(c)   they conduct activities other than those specified in Article 163, if they meet the requirements provided by Article 22 (1).

 

2.     As regards public works concessions, the specific rules contained in Title 8 shall also apply.

 

3.     As regards services specified in Annex 4, a simplified procedure may be applied (Title 9). These provisions shall not apply to services specified in Annex 3. However, in the case of public procurements which have as their object a service which includes both a service specified in Annex 3 and a service specified in Annex 4, a simplified procedure may be applied, provided that the value of the service specified in Annex 4 exceeds the value of the service specified in Annex 3 at the beginning of the public procurement.

 

4.     The provisions of Chapter V shall apply where public procurements or design contests are related to sectors or activities specified therein, including exceptions under Chapter V.

 

Contracting authorities

 

Article 22

 

1.     For the purposes of this Chapter, the following entities shall be considered as contracting authorities:

 

(a)   ministries, the Prime Minister’s Office, the body authorised to invite tenders in a centralised public award procedure;

 

(b)   the State, central budgetary authorities set up by the State, other than those specified in point (a), the entity responsible for the management of the separate state fund, budgetary authorities for social insurance set up by the State;

 

(c)   national associations of local governments of minorities, budgetary authorities set up by national associations of local governments of minorities;

 

(d)   local governments, local governments of minorities, associations of local governments, the organization appointed by local government to exclusively invite bids for locally centralized procurement[15], budgetary authorities set up by local governments or by local governments of minorities, associations of local governments for the purpose of regional development, county councils for regional development, development councils at area or regional levels;

 

(e)

 

(f)    public foundations;

 

(g)   the Central Bank of Hungary, the Hungarian Privatisation and State Holding Company Ltd., the Hungarian Development Bank Ltd., MTI Ltd. (the Hungarian News Agency), public service broadcasters, moreover broadcasters of public programmes whose operation is financed from the State budget or from budget resources of local governments to an extent exceeding 50 %, furthermore the National Radio and Television Commission;

 

(h)   entities having a legal capacity and set up by virtue of an act of legislation that provides for their duties, the rules concerning its control, supervision and operation, provided that either one or more entities (bodies) specified in points (a) to (g) of this paragraph, or Parliament or the Government may exercise a dominant influence or whose operation is financed by one or more of these bodies to an extent exceeding 50 %;

 

(i)    entities having a legal capacity which were set up to carry out, or which carry out, non-industrial and non-commercial activities of general interest, over which either one or more entities specified in this paragraph or Parliament or the Government can exercise a dominant influence or their operation is financed by one or more of these entities (bodies) to an extent exceeding 50 %;

 

(j)    entities having a legal capacity set up by one or more entities specified in point (a) (i) of this paragraph (excluding the State) with a view to carry out the core activities of the aforementioned entity (entities), provided that the relevant entity (entities) is (are) in a position to exercise a dominant influence over such a legal entity;

 

(k)   economic operator according to Article 2/A paragraph 1.

 

2.     For the purposes of this Chapter and for those of public procurement to be carried out using aid, entities not covered by paragraph 1 (with the exception of individual entrepreneur and one-man companies) shall also be considered contracting authorities if

 

(a)   one or more entities specified in paragraph 1 subsidize directly by more than 50 % the execution of the public works or related services according to Article 25 (2) of such entities;

 

(b)   the public procurement, for the purposes of this Chapter, of one or several entities specified in paragraph 1 is supported directly and preponderantly by budgetary sources and by sources originating from the European Union, or directly and preponderantly by sources originating from the European Union.

 

3.     For the purposes of paragraph 1, the assessment of whether an operation is financed to an extent exceeding 50 % shall be done at the beginning of the budgetary year, taking into account what is being envisaged for the year in question and by reference to the total foreseeable revenue.

 

4.     Credit institutions considered contracting authorities pursuant to paragraph 1 shall not be considered as such for the purposes of financial and associated services and investment and associated services utilised by such credit institutions for their own purposes.

 

Subjects of public procurements

 

Article 23

 

Subjects of public procurements shall be the following: public supply, public works, public works concessions and public services, except for service concession [Article 242 (4)].

 

Article 24

 

Public supply contracts are contracts for pecuniary interest involving the acquisition by a contracting authority, with or without option to buy, of rights of ownership or right of use or of exploitation of negotiable movable property which can be possessed. Public supply contracts shall in addition include installation and putting into operation.

 

Article 25

 

1.     Public works contracts are contracts for pecuniary interest having as their object one of the following types of work to be ordered (and accepted) by a contracting authority:

 

(a)   the execution, or both the execution and design as defined in the relevant legislation , of works related to one of the activities listed in Annex 1;

 

(b)   the execution, or both the execution and design as defined in the relevant legislation , of a work;

 

(c)   the execution, by whatever means and in whatever manner, of a work corresponding to the requirements specified by the contracting authority concerned.

 

2.     For the purposes of Article 22 (2) (a) work related to one of the civil engineering activities listed in Annex I, as well as the construction (building activities) of hospitals, facilities intended for sports, recreation and leisure, buildings for educational purposes (schools, university buildings) or buildings used for administrative purposes shall be considered as public works.

 

Article 26

 

Public works concession is a public works contract whereby the consideration by the contracting authority for the works to be carried out consists either in the right to exploit the construction for a specified period of time or in this right together with payment.

 

 

 

Article 27

 

Public service contracts are contracts for pecuniary interest which are not covered by the definition of public supply nor that of public works and which have as their object an activity in particular ordered by a contracting authority.

 

Article 28

 

1.     If the contract covers several subjects of public procurement interdependent by their nature, then such contract shall be classified according to the subject of public procurement of determining value.

 

2.     If a public procurement has as its objects those specified in Articles 24 and 27 and if the value of services covered by such a contract exceeds that of the supply covered thereby, the contract shall be considered a public service contract.

 

Exceptions

 

Article 29

 

1.     The procedure laid down in this Chapter shall not apply to

 

(a)   procurements which concern a state secret or a service secret or the fundamental security and national security interests of the country, or whose execution must be accompanied by special security measures, in respect of which the competent committee of the Parliament has adopted a preliminary decision to rule out the application of this Act;

 

(b)   procurements involving the acquisition of goods specifically designed for military and public order purposes (arms, munitions and war material) and service contracts in the field of defence which concern the fundamental interests of the country’s security, in accordance with Article 296 of the Treaty establishing the European Community;

 

(c)   procurements awarded pursuant to a particular procedure set out in an international agreement, or in an international memorandum of understanding or cooperation if the contract or the agreement relates to the stationing, passing through, deployment of troops (military forces), including in the case of units deployed to the operational theatre the procurement related to such deployment (transfer);

 

(d)   procurements awarded pursuant to a particular procedure laid down in an international agreement which has been concluded with a state outside the European Union and covers supplies intended for the joint implementation or exploitation of a project by the signatory States;

 

(e)   procurements pursuant to a particular procedure laid down by an international organization

 

(f)    procurements exclusively for the purpose of providing contracting authorities with the possibility to provide one or more public electronic telecommunication services, or of the use, or exploitation of a public electronic telecommunication network.

 

2.     The procedure laid down in this Chapter shall not apply to the services specified in Article 27 in the following cases:

 

(a)   contracts for the acquisition of existing buildings or other immovable property or for the acquisition of other rights on immovable property; except for contracts (concluded in whatever form) for financial services associated with such contract for acquisition;

 

(b)   financial services specified in Annex III. Group 6, in connection with the issue, sale, purchase or transfer of securities and other financial instruments, or with the acquisition of money or capital in the benefit of implementing monetary, exchange rate, or reserve management policy, or of the debt management policy of central government, and central bank activities;

 

(c)   contracts for the acquisition, development, production or co-production of programme (programme material) by broadcasters and contracts for broadcasting time;

 

(d)          

 

(e)   contracts for arbitration, mediating and conciliation services;

 

(f)    employment contracts, public service relationships, legal status of public servants, public prosecutors, court employees, law officers and professional members of the armed forces;

 

(g)   research and development service contracts other than those where the benefits accrue exclusively to the contracting authority for its use in the conduct of its own affairs, on condition that the service provided is wholly remunerated by the contracting authority;

 

(h)   contracts for services which are provided by one of the contracting authorities specified in Article 22 (1), or by an association they have established, on the basis of an exclusive right which they enjoy pursuant to law or regulation.

 

Community thresholds

 

Article 30

 

For the purposes of this Chapter, the threshold for public supply contracts shall be

 

(a)   an amount of euros equivalent to EUR 137.000 in the case of contracting authorities specified in Article 22 (1) (a) and in the field of defence so far as the products covered by Annex 2 are concerned;

 

(b)   an amount of euros equivalent to EUR 211.000 in the case of all other contracting authorities specified in Article 22 (1) and (2) (b), as well as in the case of contracting authorities specified in Article 22 (1) (a) where in the field of defence the products not covered by Annex 2 are concerned.

 

Article 31

 

1.     For the purposes of this Chapter the threshold for public works contracts shall be an amount of 5.278.000 euros.

 

2.     For the purposes of this Chapter, the threshold for public works concessions shall be EUR 5.278.000.

 

Article 32

 

For the purposes of this Chapter, the threshold for public service contracts shall be

 

(a)   An amount of euros equivalent to EUR 137.000 in the case of contracting authorities specified in Article 22 (1) (a) where research and development services covered in Annex 3 are concerned, except for services listed under Heading 8 and telecommunications services 7524, 7525, 7526 listed under Heading 5;

 

(b)   An amount of euros equivalent to EUR 211.000 in the case of all other contracting authorities specified in Article 22 (1) where research and development services covered in Annex 3 are concerned, except for services listed under Heading 8 and telecommunications services 7524, 7525, 7526 listed under Heading 5;

 

(c)   EUR 211.000 in the case of services listed under Heading 8 and telecommunications services 7524, 7525, 7526 listed under Heading 5 in Annex 3, as well as in the case of research and development services listed in Annex 4;

 

(d)   EUR 211.000 in the case of services referred to in Article 22 (2) (a) and of contracting authorities specified in Article 22 (2) (b).

 

Article 33

 

For the purposes of this Chapter (Title 10), the threshold for design contests shall be

 

(a)   one of the thresholds specified in Article 32 (a) to (c) where the design contest concerned is organized as part of a procedure leading to the award of a service contract;

 

(b)   one of the thresholds specified in Article 32 (a) to (c) in the case of all design contests where the contest prize and the total amount of all payments to be made to participants equals or exceeds these thresholds.

 

Article 34

 

1.     The value of the thresholds under Articles 30 to 33 and Article 42 (1)–(2) expressed in euros and in national currencies (in HUF) shall be published in the Official Journal of the European Union for the subsequent two years.

 

2.     The thresholds referred to in paragraph 1 shall also be published by the Public Procurement Council in the Public Procurement Bulletin.

 

The value of public procurements

 

Article 35

 

1.     The value of a public procurement shall be the highest consideration requested or offered in general for its subject at the time of the beginning of the contract award procedure, which is to be calculated net of VAT and taking account of the provisions of Articles 36 to 40 (hereinafter referred to as ‘estimated value’). The full consideration shall include the value of the transfer of the buy option.

 

2.     The public procurement shall be deemed to commence on the date of dispatch of the notice whereby the contract award procedure is started, or, in the case of a negotiated procedure without prior publication of notice, and in certain specified cases of a simplified procedure on the date when the invitations are sent or – in the event of procedures specified in Article 125 (2) (c) (Article 135) and in Article 147 (5) – the date of the commencement of the negotiation as appropriate. This date shall govern the application of Article 40 (2) (a).

 

3.     The estimated value of the public procurement shall include the fees and payments (commission) payable by contracting authorities to the candidates and the tenderers, if contracting authorities shall be fulfilling such payments to candidates or to tenderers.

 

Article 36

 

1.     In the case of supply contracts for the acquisition of the right to use or to exploit products, the estimated contract value shall be:

 

(a)   in respect of fixed-term contracts, where their term is 12 months or less, the contract value for its duration, or, where their term exceeds 12 months, the contract value for its duration including the estimated residual value;

 

(b)   in respect of contracts for an indefinite period or where there is a doubt as to the duration of the contracts, the monthly value multiplied by 48.

 

2.     In the case the supply contract is constituted of more than one parts, or shall be implemented on the basis of more than one contracts, the estimated value of every single part shall be calculated together.

 

Article 37

 

1.     In the case of regular contracts or of contracts which are to be renewed periodically, the estimated value of the supply or service contract shall be:

 

(a)   either the value of contracts having the same or similar subjects, concluded within the preceding fiscal year or 12 months, adjusted according to the anticipated changes in quantity and value over the 12 months following the initial contract,

 

or

 

(b)   the value during the 12 months following the initial contract following the first delivery, or during the term of the contract(s), if it exceeds 12 months.

 

2.     In the case of a supply or service contract including an option clause, the estimated contract value shall be the highest possible value of consideration inclusive of the purchase price.

 

3.     If the public procurement concerns the procurement of both supplies and services, the estimated value shall be the aggregate of the estimated value of the supplies and services. The estimated value of installation and putting into operation shall also be taken into account, where appropriate, in the estimated value of the supplies.

 

Article 38

 

1.     In the case of service contracts which do not specify a total price, the estimated contract value shall be:

 

(a)   in respect of fixed-term contracts with a term of 4 years or less, the contract value for its duration;

 

(b)   in respect of contracts of indefinite duration or with a term of more than 4 years, the monthly instalment multiplied by 48.

 

2.     For the purposes of calculating the estimated value of the services the following shall be taken into account:

 

(a)   in the case of insurance contracts: the premium payable and other considerations;

 

(b)   in the case of banking and other financial services: fees, commissions, interest, and other considerations;

 

(c)   in the case of services including design: the fee payable, or the commission and other considerations.

 

3.     If the services are constituted or more than one parts, or if such are implemented on the basis of more than one contracts, the estimated value of every single part shall be calculated together.

 

Article 38/A

 

For the purpose of calculating the estimated contract value for the design contest account shall be taken of the following:

 

(a)   the fees or the commissions and also the other considerations payable to candidates if a contract is awarded as the result of the design contest procedure;

 

(b)   as well as the estimated value of the services that shall be purchased subsequent to the design contest procedure, and for which a contract shall be concluded with the winner or, based on a recommendation from the jury, with one of the winners (prize winners), unless the contracting authority (the sponsor) excluded the conclusion of any such contract in the invitation starting the procedure.

 

Article 39

 

1.     When calculating the estimated value of public works contracts covering a period of several years, the total remuneration of the work shall be taken into account.

 

2.     Where public works are subdivided into several lots, or are executed under individual contracts, the estimated value of each lot shall be taken into account for the purpose of calculating the total value.

 

3.     The estimated value of the supplies and services needed to carry out the works and provided by the contracting authority shall also be taken into account for the purpose of calculating the estimated contract value.

 

4.     The estimated value of supplies and services not needed to carry out the public works shall not be taken into consideration when calculating the estimated value thereof with the intention of avoiding the application of this Act to the given public supply or public works contract.

 

Article 39/A

 

1.     The estimated value of the framework agreement shall be the estimated highest aggregated value of the contracts to be concluded during the period in question on the basis of the agreement.

 

2[16]. In the case of the application of the dynamic purchasing system the estimated value of the public procurement shall be the highest aggregated value of the contracts to be concluded during the period in question on the basis of the system.

 

Article 40

 

1.     It shall be prohibited to apply any of the valuation methods described in Articles 35 to 39 with the intention of avoiding the application of this Act, and to split up any procurement in violation of paragraph 2 with the same intention.

 

2.     When calculating the estimated contract value, account shall be taken of all those supplies or works or services which

 

(a)   have been delivered or executed or performed, as appropriate, during the same fiscal year or during the same period of 12 months [Article 37 (1)] [with the exception of cases covered by Article 39 (1)], and

 

(b)   could be supplied under contracts to be concluded with the same contracting authority, and

 

(c)   have the same purpose or similar purposes, or their uses are directly interconnected.

 

3.     Where a contract award procedure, as set forth in this Chapter, is to be conducted according to paragraph 2 due to the aggregate value of several supply products each of which has a value below the Community threshold, their acquisition pursuant to more than one contract award procedure under this Chapter despite the calculation of their aggregate value shall not constitute an act of avoidance of the application of this Act.

 

4.     Where no account was taken of the provisions of paragraph 2 in calculating the estimated value, the supply products still to be procured, as set forth in this Chapter, in the fiscal year or in the twelve months in question may, regardless of their individual value, only be covered by a contract which is to be concluded pursuant to a contract award procedure under this Chapter.

 

Title 2

 

General rules for contract award procedures

 

Types of contract award procedures

 

Article 41

 

1.     Contract award procedures may be open or restricted or negotiated or competitive dialogue procedures. Recourse to a negotiated procedure or to a competitive dialogue procedure may only take place if this is permitted by this Chapter.

 

2.     In open or restricted procedures the contracting authority shall be bound by the conditions specified in the invitation and in the tender documentation, while the tenderer shall be bound by his tender. In open or restricted procedures no negotiation may take place.

 

3.     Contracting authorities may apply a framework agreement procedure (Title 7/A).

 

4.[17] Contracting authorities may create and operate a dynamic purchasing system that aims at selecting in advance candidates to participate in a procedure to implement specific public procurements. A separate act of legislation shall define the detailed rules concerning the dynamic purchasing system.

 

5.     In the course of a contract award procedure there shall be no changeover from one type of procedure to another one.

 

6.     In the event of an unsuccessful open or a restricted or a negotiated procedure, or of a competitive dialogue, the contracting authority shall decide to launch a new procedure, in conformity with the rules for the application of the various types of procedures, except when they no longer intend to carry out the public procurement in question.

 

7.     Unless otherwise provided in this Chapter, the rules pertaining to open procedures shall apply as appropriate to restricted and negotiated procedures, and to the competitive dialogue.

 

Prior information

 

Article 42

 

1.     Contracting authorities, after the budgetary year begins, may prepare an indicative consolidated information notice for the relevant year, or for the subsequent 12 months at the most, for

 

(a)   total procurement under supply contracts (equaling or exceeding Community thresholds and exclusive of exceptions) if the total estimated value of such procurement equals or exceeds 750.000 euros;

 

(b)   total procurement under contracts for services listed in Annex III (equaling or exceeding Community thresholds and exclusive of exceptions), if the total estimated value of such procurement equals or exceeds 750.000 euros.

 

2.     Contracting authorities may prepare an indicative consolidated information notice indicating the essential characteristics of and conditions for a planned public works contract, if the estimated value of this public works is equal to or exceeds the Community threshold concerning public works. This notice shall be prepared after the decision has been made to implement the planned public works.

 

3.     Where there are various subjects of public procurements, indicative overall information notices may be prepared either to cover all of them in a single document or to cover each in an individual document.

 

Article 43

 

1.     Contracting authorities shall publish their indicative overall information by means of a notice. Such notices shall be drawn up in accordance with a template provided in the relevant legislation, and they shall be sent by the deadline provided for in Article 42 (1)‑(2) at the latest. Contracting authorities may publish their indicative consolidate notice on their Internet homepage. The notice may be published on the Internet homepage after it has been dispatched electronically to the Office for Official Publications of the European Communities. Also in this case the notice shall be prepared in accordance with the template provided in a separate act of legislation.

 

2.     In the case of supply contracts the indicative consolidated information shall be prepared in a breakdown of product categories, and shall specify the relevant product category by reference to CPV.

 

3.     In the case of service contracts, indicative overall information notices shall be prepared by categories of services listed in Annex 3.

 

4.     Publication of an indicative overall information notice shall not entail any obligation to conduct a procedure for the award of a contract included therein.

 

5 - 6.

 

Sending and publication of notices

 

Article 44

 

1.     For the purposes of this Chapter, publication of a notice shall mean its publication in the Official Journal of the European Union and in the Tenders Electronic Daily (hereinafter referred to as ‘TED data bank’), except where this Chapter provides otherwise. In the case of the publication of the notice on the Internet homepage of the contracting authority [Article 43 (1)], the date when this notice is published on the homepage shall govern the legal effects related to the publication of the notice.

 

2.     The contracting authorities shall send the notices as rapidly as possible and by the most appropriate channels via the Public Procurement Council to the Office for Official Publications of the European Communities. In the case of an accelerated procedure (Article 136), the notice shall be sent by telefax or electronically.

 

3.     The Office for Official Publications of the European Communities shall publish the notices no later than 12 days after their dispatch; in the case of an accelerated procedure or in the case of dispatch of the notice by electronic means and in a manner specified in the relevant legislation, this period shall be reduced to five days.

 

4.     Before forwarding or dispatching the notice sent by the contracting authority, (the Secretariat of) the Public Procurement Council shall examine the notice to ensure that it complies with the legislation applicable to public procurements. A fee, specified in a separate act of legislation, shall be paid for examining the notice.

 

5.     The notice is dispatched by the Public Procurement Council for publication. The Public Procurement Council must furnish proof of the dispatch date of the notice.

 

6.[18] In the case of a notice dispatched through non-electronic means, or electronically, but not in the form specified by the separate act of legislation, the Public Procurement Council, at the request of the contracting authority, shall dispatch the notice to the Office for Official Publications of the European Communities in the form specified by the separate act of legislation. For dispatching the notice electronically in such a form a fee shall be collected, the amount of which is specified in a separate act of legislation.

 

7.     The Office for Official Publications of the European Communities shall dispatch a confirmation about the publication of the notice sent, indicating the date of such publication. This confirmation shall be considered as evidence concerning publication.

 

Article 45

 

1.     Indicative consolidated information notices, as well as notices starting the public procurement procedure, and notices on the results of the procedures shall be published in full in the Official Journal of the European Union and in the TED databank in the official language chosen by the contracting authority.

 

2.     A summary of the important constituent elements of the notices prepared according to the provisions set out in paragraph 1 shall be published in the official languages of the European Union noting that only the text drawn up and sent in the official language chosen by the contracting authority shall be considered authentic.

 

3.     The size of the notice dispatched in a non-electronic form shall not be larger than the size specified according to paragraph 5 by a separate act of legislation.

 

4.     The cost of publication of the notices in the Official Journal of the European Union shall be borne by the European Union. 

 

5.     Detailed rules for the sending and publication of notices shall be laid down in specific legislation.

 

Article 46

 

Contracting authorities may also request the publication, within the meaning of Article 44 (1), of such notices which concern public procurements whose publication is not obligatory in accordance with this Chapter. Such publication, however, shall not be subject to the procedure set forth in this Chapter.

 

Article 47

 

1.     Notices covered by this Chapter [Article 44 (1)] shall be published as information by the Public Procurement Council in the Public Procurement Bulletin according to a separate act of legislation, and in the benefit of this contracting authorities shall send to the Public Procurement Council the notice they have dispatched for publication. Contracting authorities may publish the notice by means of any other channel, provided that such publication takes place only after the dispatch of this notice to the Office for Official Publications of the European Communities. Notices published thereby shall not contain data other than that published in the Official Journal of the European Union (in the TED databank), as well as on the Internet homepage of the contracting authority, and these shall mention the date of dispatch to the Office for Official Publication, and also the date of publishing on the homepage.

 

2.     Publication rules laid down in Part Three shall apply as appropriate to notices to be published in the Public Procurement Bulleting according to this Chapter.

 

 

Title 3

 

Open procedures

 

Launch of the procedure

 

Article 48

 

1.     The open procedure shall be launched by a tender notice which shall be published in a notice by the contracting authority.

 

2.     The tender notice may also be published if the contracting authority or the body specified in Article 22 (2) has submitted or will submit an application (tender) for subsidy. In the tender notice (under “Other information”) tenderers shall be advised of this circumstance as well as the condition set forth in paragraph 3.

 

3.     In the case of paragraph 2 rejection of the application for subsidy shall be deemed as a reason or circumstance stipulated in Article 82, Article 99 (3) and Article 303.

 

The tender notice

 

Article 49

 

The tender notice shall be drawn up according to the template provided for in the relevant legislation in a manner that grants equal opportunities to tenderers to submit an appropriate tender.

 

Article 50

 

1.     The contracting authority shall state the subject and value of the contract in the tender notice.

 

2.     The contracting authority may specify the value or quantity of the contract as a threshold or a ceiling and allow derivation therefrom, stating also the percentage of permitted discrepancy.

 

3.     In the tender notice the contracting authority may allow tendering for a part of the public procurement. In such cases the tender notice shall stipulate those elements of the subject of the public procurement that may be tendered for in the form partial offers.

 

Article 51

 

1.     The tender notice shall indicate if the tenderer is permitted to submit variant (alternative) offers. The application of Article 50 (2) in itself shall not be considered a permission to submit variant offers.

 

2.     The contracting authority may permit the submission of variant offers, where the contract is awarded by the best-value-for-money procedure [Article 57 (2) (b)].

 

3.     When the contracting authority permits the submission of variant offers, it shall state in the tender notice or the tender specifications the minimum requirements and technical specifications for public procurement to be observed by the variant offers and any specific requirements for their presentation.

 

Article 52

 

Tenders may be submitted by several tenderers jointly. The contracting authority may not require such joint tenderers to set up a company or a specific legal entity as a condition of submitting the tender; however, joint tenderers selected as contractor may be required to do so should that be justified for the performance of the contract. Tenderers shall be advised of this fact in the tender notice.

 

Article 53

 

1.     In the tender notice the contracting authority shall stipulate the conditions for settling the consideration and refer to the applicable legal regulations. In that notice the contracting authority shall also describe its intentions to reach agreement on deferred payment of the consideration or on payment in instalments.[19]

 

2.     If the public procurement is financially supported by the European Union, the contracting authority shall provide the details of the given project (program) in the tender notice.

 

3.     The tender notice shall state the date of announcement of the results [Article 94 (1)] as well as the date of signing the contract [Article 99 (2)].

 

4.     The contracting authority may stipulate in the tender notice that the tenderer should apply the method of value analysis.

 

5.     In the invitation to tender contracting authorities may set out the requirement that the contract awarded shall include a guarantee; in this case in the invitation to tender contracting authorities

 

(a)   shall specify that this guarantee may be presented in the specified amount of money, according to the choice of the winning contracting tenderer, in the form of a payment into the banking account of the contracting authority in question, of providing a banking guarantee, of a promissory note for cash payment issued on the basis of an insurance contract, or

 

(b)   shall specify one or several forms of guarantees that are not included under point (a), and shall provide that the winning contracting tenderer shall make a choice and provide the guarantee in any form specified, or set out under point (a).

 

6.     In the invitation to tender contracting authorities may set out the requirement that the fulfillment of the contract concluded with the winning contracting tenderer shall be subject to specific conditions, pursuant to law, in particular to social, as well as environmental protection, quality assurance[20] requirements. Contracting authorities shall provide detailed information about these requirements in the tender documentation.

 

7.     The application of paragraph 6 shall not result in either unjustified, nor positive or negative discrimination of tenderers, moreover, in the context of the fulfillment of the contract no such issues shall be set forth that concern the technical specification of the public procurement, the assessment of the financial and economic, as well as professional capabilities of tenderer, and the evaluation criteria considered as such by the contracting authority.

 

8.     For the purpose of the application of paragraph 6 a social requirement, in particular, shall be

 

(a)   involvement in the fulfillment of the relevant contract of a sheltered employer, of an organization that has concluded a sheltered entity contract, as well as an organization that possesses a social employment license;

 

(b)   employment of persons looking for work, and of unemployed persons;

 

(c)   employment of persons in part-time jobs who are recipients of child care aid, of child education support during the duration of such payments or subsequent to the ending of such payments, and employment of persons who are recipients of pregnancy and child birth aid, and child care benefits after the end of the payment of such;

 

(d)   a specification of the measures for ensuring the implementation of the principle of equal treatment.

 

Tender specifications

 

Article 54

 

1.     Partly in order to facilitate the preparation of suitable tenders, the contracting authority shall draw up tender specifications which, among others, contain the detailed contracting terms and conditions or the draft contract.

 

2.     In the tender notice the contracting authority shall specify the method, the final date and the place for collecting the tender specifications as well as the terms of payment of any sum to be paid for such documents. The contracting authority may stipulate in its tender notice that participation in the procedure is subject to the purchase or receipt of the tender specifications. In case several tenderers shall make a common tender, then it will be sufficient if one of the tenderers buys or receives the tender documentation.

 

3.     The contracting authority shall ensure that the tender specifications are available from the publication of the tender notice until the expiry of the time limit to submit tenders.

 

4.     Provided they have requested the sending of the tender documentation, and the contracting authority has not made the full documentation directly accessible free-of-charge for tenderers, the contracting authority or the entity they so instruct, shall satisfy the request not later than two working days after having received the request, provided the counter value has been paid.

 

5.     The sum payable for the tender specifications shall be established based on the costs incurred in connection with their production and provision to the tenderers due to the public procurement process.

 

6.     The tender specifications shall be returned and the sum paid refunded within ten days, if

 

(a)   the contracting authority withdraws the tender notice;

 

(b)   the procedure is unsuccessful under Article 92 (d), (f) or (g);

 

(c)   the contracting authority fails to announce the result of the procedure by the time limit indicated in the tender notice nor by the extended deadline.

 

Article 55

 

In the case of works contracts and the procurement of services the contracting authority may state in the invitation to tender that tenderer shall obtain appropriate information on the obligations relating to taxes, to environmental protection, to providing unhindered access to facilities, as well as to the employment protection provisions and to the working conditions which are in force at the site of implementation and which shall be applicable. In this case the contracting authority shall provide the name and the address of the bodies (authorities) from which a tenderer may obtain the appropriate information.

 

Additional information

 

Article 56

 

1.     In order to submit an appropriate tender, the tenderer may request in writing from the contracting authority or the authority designated thereby additional (interpretative) information concerning the tender notice and the tender specifications no later than ten days before the expiry of the time limit to submit tenders.

 

2.     The additional information shall be provided no later than six days before the expiry of the time limit to submit tenders.

 

3.     The contracting authority may extend the expiry of the time limit to submit a tender if it cannot provide in time the additional information pursuant to paragraph 2. All tenderers shall be informed without any delay, in writing and at the same time about the extension of the expiry of the time limit to submit the tender. In this case Article 75 (1) shall not be applicable. The contracting authority may use the possibility of extending the expiry of the time limit to submit a tender only if they have stated in the invitation to tender the purchasing or the receipt of the tender documentation is a precondition for participation in the procedure. Tenderers which have not yet purchased nor have not yet received the tender documentation, shall be informed in writing about this condition at the time when they receive the documentation.

 

4.     The provision of additional information may not prejudice the equal treatment and equal opportunities of tenderers. The full contents of the information shall be made accessible or sent to the tenderers. Such information shall not result in the modification of the tender notice and tender specifications.

 

5.     Additional information may also be provided in the form of consultation. In that case, the time and place of the consultation shall be indicated in the tender notice. Minutes shall be taken on the consultation to be forwarded within five days thereof to the tenderers having attended the consultation, and simultaneously made accessible to the tenderers.

 

6.     Paragraphs 1 to 5 shall be applicable also to additional information provided during on-the-site inspections and site visits.

 

Evaluation criteria

 

Article 57

 

1.     The contracting authority shall specify the evaluation criteria in the tender notice.

 

2.     The contract may be awarded based on either of the following two criteria:

 

(a)   the tender quoting the lowest price, or

 

(b)   the best-value-for-money tender.

 

3.     If the contracting authority wishes to select the best-value-for-money tender, it shall specify:

 

(a)   the constituent factors for assessing the economically most advantageous tender;

 

(b)   the rated multiplier of each constituent factor to determine its weight, as consistent with the actual significance of such factor (hereinafter referred to as ‘weight’);

 

(c)   the lowest and highest scores, to be the same for all constituent factor, for the content elements of tenders when evaluating according to constituent factors;

 

(d)   the method(s) that shall provide the scores in the range between the higher and upper limits of the scores (point c).

 

4.     The contracting authority shall specify the constituent factors pursuant to paragraph 3 (a), according to the following requirements:

 

(a)   Within the scope of constituent factors the financial and economic standing, the technical capabilities and the professional qualifications of the tenderer for performing the contract shall not be evaluated;

 

(b)   The constituent factor for the amount of price shall always be provided for among the constituent factors;

 

(c)   The constituent factors shall always be based on quantifiable elements or elements comparable in some other manner and shall be related to the subject of the public procurement and the material terms of the relevant contract (in addition to the price, e.g.: quality, technical value, aesthetic and functional properties, environmental effects, operating costs, economy and cost-efficiency, customer service and technical assistance, supply of spare parts, securing stocks, delivery date or period);

 

(d)   The constituent factors shall never allow the same substantial element in a bid being taken into consideration more than once;

 

(e)   If within the scope of the constituent factors sub-factors have been specified, the relevant weight of these shall be specified commensurate to their actual significance.

 

5.     The information listed in paragraph 3 shall be indicated in the tender notice (the details referred to in points (c) and (d) under “Other information”), however, the detailed description of the method(s) specified in point (d) may also be included in the tender specifications.

 

6.     The Public Procurement Council shall prepare recommendations regarding the methods referred to in paragraph 3 (d) and the assessment of the tenders.

 

Technical specifications for public procurement

 

Article 58

 

1.     The contracting authority shall provide in the invitation to tender or in the tender specifications the public procurement technical specifications for the subject-matter of the public procurement.

 

2.     Public procurement technical specifications shall be defined so as to take into account accessibility criteria for all users, and whenever possible, equal treatment accessibility criteria for people with locomotion disabilities.

 

3.     Without prejudice to mandatory technical rules, to the extent that they are compatible with Community law, the technical specifications shall be drawn up as follows:

 

(a)   with respect to the design, calculation, and execution of the works and use of the product by reference to national standards transposing European standards, European technical approvals, common technical specifications, international standards, technical reference systems established by the European standardization bodies, or – when these do not exist – to national standards, or national technical approvals, or national technical specifications; or

 

(b)   in terms of performance or functional requirements; or

 

(c)   according to the terms mentioned in point (b), with reference to the specifications mentioned in point (a) as a means of presuming conformity with such requirements; or

 

(d)   for certain characteristics referring to the specifications mentioned in point (a), and for other characteristics referring to the requirements mentioned in point (b).

 

4.     In the case of paragraph 3 (a) the contracting authority shall, besides referring to the name of the standard, technical approval, technical specifications, technical reference system, mention the term “or equivalent”.

 

5.     Where contracting authorities lay down environmental characteristics in terms of performance or functional requirements  as referred to in paragraph 3 (b), they may use the detailed specifications or, if necessary, parts thereof, as defined by European national (or international) eco-labels, provided that:

 

(a)   those specifications are appropriate to define the characteristics required by the subject-matter of the public procurement,

 

(b)   the requirements for the label are drawn up on the basis of scientific data,

 

(c)   the eco-label has been adopted using a procedure in which all interested parties could participate, and

 

(d)   the specifications are accessible to all interested parties.

 

6.     Contracting authorities may indicate that the products and services bearing the eco-label are presumed to comply with the public procurement technical specifications. In this case the contracting authority shall accept any other appropriate means of proof, in particular a technical documentation of the manufacturer, or a test report from a recognized body. Recognized bodies are test and calibration laboratories, and certification and inspection bodies which comply with applicable European standards. Contracting authorities shall accept certificates from recognized bodies established in other Member States.

 

7.     The contracting authority shall not define the public procurement technical specification as to exclude from the procedure certain tenderers or products, or with the effect of favouring or disadvantaging in any other manner. If the precise and intelligible description of the subject-matter of the public procurement justifies reference to a specific make or source, or type, or a particular process, activity, person, or patent or trade mark, the specification shall state this was justified only by the need to specify the subject matter precisely, and such a reference shall be accompanied by the word “or equivalent”.

 

Tender bond

 

Article 59

 

1.     A contracting authority may render participation in the procedure subject to the provision of a tender guarantee (hereinafter referred to as ‘tender bond’), to be provided by tenderers simultaneously with submitting their tenders, or by the deadline specified by the contracting authority in the tender notice in the amount defined therein. Tenderers shall produce proof of having the tender bond provided to the contracting authority.

 

2.     The tender bond may be provided by having the prescribed sum deposited into the account of the contracting authority or by the provision of financial guarantee or by furnishing a promissory note issued pursuant to an insurance contract and containing a joint and several guarantee, subject to the choice of the tenderer. The place of payment and the account number of the contracting authority, together with the method of evidencing such payment shall be defined in the tender notice.

 

3.     The amount of the tender bond shall be established in a manner which ensures equal opportunity to all tenderers and set so as to cover any potential damages sustained, as foreseeable, by the contracting authority in the event of infringement of the parties’ contractual obligations as described in paragraph 4, or in the event of the tenderer withdrawing his tender within the validity period (Articles 76–77) or if contracting fails due to reasons attributable to the tenderer.

 

4.     If the tenderer withdraws its tender during the validity period or the contract is not concluded due to a reason arising within the tenderer’s sphere of interest, the tender bond shall be forfeit and can be claimed by the contracting authority.

 

5.     The tender bond shall be refunded

 

(a)   to tenderers within ten days of the withdrawal of the tender notice, of having the procedure declared unsuccessful or announcing the award of the contract;

 

(b)   to the successful tenderer, or in the case set forth in Article 91 (2) to the tenderer ranked second, within ten days of signing the contract, unless the tender notice stipulated the tender bond to be retained and transferred as additional security for the ensuing contract.

 

6.     If participation in the procedure was made conditional upon the provision of a tender bond, the contracting authority shall, within ten days, refund double the amount in case of a bond furnished in cash, or an amount equivalent to the bond in all other cases

 

(a)   to tenderers in the event of failing to announce the award of the contract by the date indicated therefore in the tender notice, or by the modified date;

 

(b)   to the successful tenderer, or in the case set forth in Article 91 (2), to the tenderer ranked second, in the event of failing to conclude the contract.

 

Grounds for exclusion

 

Article 60

 

1.     The following tenderers and subcontractors shall be excluded from participation in the procedure:

 

(a)   who are being wound up or against whom bankruptcy or liquidation proceedings are in progress, or against whom a similar process is in progress, or who is in a similar situation pursuant to personal right, or who are any analogous situation arising from a similar procedure under their personal right;

 

(b)   who have suspended business activities or whose business activities have been suspended;

 

(c)   who have been convicted of an offence concerning their business activities or professional conduct by a judgment which has the force of res judicata, until the time limit for the detriments regarding criminal records lapses; or whose activity was restricted by a judgment which has the force of res judicata, under Article 5 (2) (b) and (f) of Act CIV of 2001 on Punitive actions applicable against legal persons, during the period of prohibition; or whose activities have been restricted for a similar reason and in a similar manner by another court in a judgement which has obtained the force of res judicata;

 

(d)   who have been prohibited from participating in contract award procedures by a judgment which has the force of res judicata, during the period of the prohibition;

 

(e)   have not fulfilled their tax, customs duty or social security contribution payment obligations for over a year, in accordance with the legal provisions of the country in which they are established or with those of the country of the contracting authority, unless they were granted a permission for deferred payment of the debt;

 

(f)    supplied false data in an earlier contract award procedure (concluded within the previous three years) and was therefore excluded from the procedure, or the supply of false data was ascertained by a judgment which has the force of res judicata.

 

(g)   who in an administrative or a Court judgment which has the force of res judicata, delivered not more than five years ago, has been found to have violated the law and has been subsequently fined or ordered to pay a fine by the Labor Tribunal for having violated obligations in connection with the establishment or with the registration of a labor contract, or in connection with the employment of foreigners[21];

 

(h)   who commits a crime of participation in a criminal organization pursuant to the Criminal Code, including committing a crime within a criminal organization, of bribery, of bribery in international relations, of infringing the financial interests of the European Communities provided he is the subject of a judgment of the Court which has the force of res judicata, until the expiry of the time limit for the consequences of such judgment;

 

(i)[22] who has acted contrary to and has been found to have violated the law on gender equality and on equal treatment by an administrative or Court judgment which has the force of res judicata, delivered not more than two years ago and who has been subsequently fined.

 

2.[23]  With regard to tenderers and subcontracts with a seat in Hungary the tax payment liability referred to in paragraph 1 (e) shall mean the tax payment liability indicated in the records of the national income tax and national customs authority.

 

3.     Concerning the criminal acts referred to in paragraph 1 (h), in the case of tenderers established in other Member State of the European Union, participation in a criminal organization, as defined in Article 2 (1) of Council Joint Action 733/98/HA, corruption, as defined in Article 3 of the Council Act of 26 May 1997, and Article 3 (1) of Council Joint Action 742/98/HA, respectively, fraud within the meaning of Article 1 of the Convention  relating to the protection of the financial interests of the European Communities, money laundering, as defined in Article 1 of Council Directive 308/91/EEC on prevention of the use of the financial system for the purpose of money laundering shall be effective, respectively.

 

4.     The reasons listed in paragraph 1 for exclusion also shall be applied appropriately to organizations specified in Article 66 (2), and in Article 67 (4).

 

5.     The contracting authority in the invitation to tender shall refer to the reasons for exclusion pursuant to paragraph 1, as well as to the provisions laid down in paragraph 4.

 

Article 61

 

1.     The contracting authority may stipulate in the tender notice that the following tenderers, subcontractors they intend to employ for more than 10% of the contract value and subcontractors as defined in points (d)-(e) are excluded from the procedure:

 

(a)   who have been convicted of an offence concerning their business activities or professional conduct by a judgment which has the force of res judicata delivered within the previous five years;

 

(b)   who have committed an offence and have been issued a pecuniary penalty under Article 11 of Act LVII of 1996 on the prohibition of unfair market practices and restriction of competition, as well as according to Article 81 of the Treaty establishing the European Community, in the final and enforceable decision of the Office for Economic Competition – delivered within the previous five years —, or in the event of the court review of the decision of the Office for Economic Competition, by a pecuniary penalty and a judgment which has the force of res judicata; or if the perpetration of such offence by the tenderer has been ascertained by a final decision and a pecuniary penalty, or by a judgment which has the force of res judicata and a pecuniary penalty of another economic competition office or court within the previous five years;

 

(c)   who have violated their contractual obligations undertaken in a contract award procedure (concluded within the previous five years) as ascertained under a final administrative or court judgement which has the force of res judicata;

 

(d)   who are not registered in their country of establishment;

 

(e)   who do not hold the permit or licence or are not members in a professional organisation or chamber prescribed in their country of establishment for the provision of the service.

 

2.     If the contracting authority is a local government, a local government of minorities, a local minority self-government, a budgetary authority of a local government or of a local minority self-government, it may also stipulate in the tender notice that those tenderers and subcontractors who have failed to fulfil their obligations relating to the payment of tax, customs duty or social security contributions for over a year, in accordance with the records of the tax authority competent at the seat of the contracting authority, unless they were granted a permission for deferred payment of the debt.

 

3.     Tenderers or subcontractors authorised to provide the relevant service in the country of their establishment shall not be excluded from the procedure on the grounds that they do not fulfil the legal and organisational criteria (e.g. being a legal entity) stipulated by Hungarian legislation for the provision of the relevant service, or that according to Hungarian legislation only natural persons are entitled to provide the relevant service.

 

Article 62

 

1.     The contracting authority shall exclude from the procedure those tenderers who themselves, or whose subcontractor intended to be employed by the tenderer for more than 10% of the contract value according to Article 71 (1) (b) and (5)

 

(a)   committed, as defined by legislation, a breach of professional duty or an act violating professional ethics within the last three years or a material breach of a contractual obligation undertaken pursuant to an earlier public procurement award procedure concluded within the last three years, and the contracting authority has proof thereof;

 

(b)   have provided false data or made a misrepresentation in the course of supplying the information prescribed in the procedure (in particular Article 70 (2) and Article 71).

 

2.     The contracting authority shall refer in the tender notice to the grounds for exclusion listed in paragraph 1 above.

 

Article 63

 

1.     Tenderers, and in the case outlined in Article 71 (1) (b) and (5), their subcontractors intended to be employed for more than 10% of the public procurement value, shall certify and/or make a written statement in the tender in compliance with paragraphs (2)–(3), that they are not subject to Article 60 (1) or – if prescribed by the contracting authority – to Article 61 (1) and (2).

 

2.     The contracting authority shall accept the following certificates and written declarations:

 

(a)[24] for Article 60 (1) (a)–(d), (f) and(h) and Article 61 (1) (a)–(c), the production of an extract from the ‘judicial or police record’ (certificate of clean criminal record) or, failing this, of an equivalent document issued by competent judicial or administrative authorities;

 

(b)   for Article 60 (1) (e), a certificate issued by the competent authorities in the country concerned;

 

(c)   if the competent court or authority does not issue extracts and certificates according to point (a) or (b), or these do not cover all the cases referred to in point (a), then the declaration of the tenderer (subcontractor) made under oath or if such a declaration is not known in the country concerned, a declaration made by the tenderer (subcontractor) before the competent court, authority, chamber of professional association, attested by the notary public;

 

(d)   for Article 61 (1) (d), a certificate (extract), or another certificate or declaration pursuant to the registers listed in Annex IX B for public supplies, in Annex IX A for public works, in Annex IX C for public services in Directive 18/2004/EC on the coordination of procedures for the award of public works contracts, public supply contracts, and public service contracts;

 

(e)   for Article 61 (1) (e), the certified copy of the permit or licence, and the certificate of membership in a professional association or chamber;

 

(f)[25] for Article 60 (1) (i) the declaration of the tenderer (subcontractor);

 

(g)   for Article 61 (2) the certificate of the authority;

 

(h)   the certificate based on the official list of recognised tenderers, if the register verifies – also considering the provisions of Article 14 – that the tenderer (subcontractor) is not subject to any of the cases described in Articles 60–61.

 

3.     The tenderer and its subcontractor intended to be employed for more than 10% of the value of the public procurement shall attach, in compliance with paragraph 1 the certificate of the authorities keeping records of public debts specified in Article 60 (1) (e) and – if prescribed by the contracting authority – Article 61 (2) issued within one year prior to the date of announcing the results of the procedure, stating that at the time of issuing the certificate, the tenderer and its subcontractor has no public debt on the records of the authority, or stating the past due date of the debt and whether deferred payment was granted.

 

4.     If a new public due is stipulated by law under the scope of Article 60 (1) (e) or Article 61 (2)  a certificate thereon shall be attached only in the case of contract award procedures whose results are scheduled to be announced later than one year after the legal regulation on said public debt enters into force.

 

5. [26] The existence of the condition in point (g) of Article 60 (1), in cases pertaining to the scope of Act LXXV of 1996 on labour health and safety control, shall be controlled by the contracting authority according to the data published by the labour safety authority[27]. In cases under the scope of Act XLVIII of 1993 on mining activity the authority certificate shall be issued by the mining supervision[28]. The authority certificate shall be valid for three months counted from the date of its issue.

 

6[29]_The authority certificate shall state it was issued “for use in a public procurement procedure” without indicating either the contracting authority or the subject of the procedure.

 

7.[30] The organization pursuant to Article 66 (2) and Article 67 (4) shall certify in the offer by a declaration attested by a notary public that they are not under the effect of Article 60 (1).           

 

8.[31]  On request, within two business days of receipt, the contracting authority shall inform the contracting authority of another contract award procedure of the circumstance described in Article 61 (1) (c).

 

Article 64

 

1.     The Public Procurement Council shall issue an information notice on the certificates, statements, records and data referred to in Article 63 (2)–(3).

 

2.     The Public Procurement Council shall notify the other Member States of the European Union and the European Commission on the competent domestic authorities, certificates, statements, registers and data referred to in Article 63 (2).

 

Qualification of the tenderer and its subcontractor

 

Article 65

 

1.     The contracting authority shall prescribe in the tender notice the criteria of both economic and financial standing, technical capacity and professional qualifications of the tenderer, and the certification thereof. The criteria and certification of suitability may only be prescribed by the contracting authority in compliance with Articles 66–69; this provision shall also apply to subcontractors intended to be employed for more than 10% of the public procurement value (Article 71 (4)).

 

2.     The contracting authority may prescribe in its tender notice that tenderers who are not natural persons must specify in their tenders the names and qualifications of the natural persons to be personally involved in the delivery of the service.

 

 

 

 

Article 66

 

1.     In the case of public supply contracts, public works contracts and public service contracts, evidence concerning the suitability of the financial and economic standing of the tenderer and its subcontractor intended to be employed for more than 10% of the contract value for the performance of the contract may be furnished by the following references:

 

(a)   a statement – to this effect - from the financial institution, or a certificate regarding the existence of appropriate surety (liability insurance);

 

(b)   the submission of the tenderer’s report (where it’s the publication of such a report is required under the law of the country in which the tenderer is established) prepared in compliance with the accounting regulations;

 

(c)   a statement of total turnover and of its turnover in respect of the subject matter of the public procurement for not more than the previous three years, depending on when the tenderer was established, when they started operating if the turnover figures are available;

 

(d)   other statement or document containing the information prescribed or accepted by the contracting authority and suitable for the assessment of the economic and financial standing and of technical capacity of the tenderer.

 

2.     Tenderer may rely on resources of other entities (organizations) in order to be in compliance with suitability requirements specified in paragraph 1 (a) to (d). In this case tenderer shall also[32] certify, the availability of the resources needed to implement the contract during the period of such implementation. Certification shall take effect by the presentation of the declaration of the organization in question concerning their undertaking to assume the relevant responsibility.

 

Article 67

 

1.     In the case of public supply contracts – considering the nature, volume and purpose thereof – the following evidence may be furnished regarding the suitability of the technical capacity and professional qualification of the tenderer and its subcontractor intended to be employed for more than 10% of the contract value for the purpose of performing the contract:

 

(a)   a list of major deliveries during, at least, the last three years (indicating at least the dates of the delivery, the other party to the contract concluded, the subject-matter of the delivery, as well as the sum of the consideration or another data referring to the quantity of the previous delivery);

 

(b)   a description of the supplier’s technical facilities, its quality assurance measures and its study and research facilities;

 

(c)   indication of the professionals (bodies) and managers envisaged to be involved in the performance, indicating also their qualifications, especially those responsible for quality control;

 

(d)   description, samples and/or photographs of the products to be supplied, the authenticity of which must be certified if the contracting authority so requests;

 

(e)   certificates drawn up by recognized institutes (accredited in any national system) or agencies attesting conformity to certain specifications or standards of products clearly identified by references to specifications or standards;

 

(f)    where the products to be supplied are complex or are required for a special purpose, a check carried out by the contracting authorities or by another body, on the production capacities of the supplier and if necessary on his study and research facilities and quality control measures.

 

2.     In the case of public works contracts, the following evidence may be furnished regarding the suitability of the technical capacity and professional qualification of the tenderer and its subcontractor intended to be employed for more than 10% of the contract value for the purpose of performing the contract:

 

(a)   a description of major works carried out over the past five years;

 

(b)   a statement of the tools, plant and technical equipment available to the contractor for carrying out the work;

 

(c)   the contractor’s education and qualifications and/or those of the firm’s executive officers and, in particular, those of the person or persons responsible for the delivery of the works;

 

(d)   a statement of the firm’s average annual manpower statistics and the number of executive officers for the last three years;

 

(e)   a statement of the experts (bodies) and managers, indicating their qualifications, which the tenderer intends to involve in the performance of the contract, especially with the introduction of those wo shall be responsible for quality controll[33];

 

(f)    providing a description, when appropriate, of the environmental measures that tenderer shall be able to provide in the course of fulfillment.

 

3.     In the case of public service contracts –  considering the nature, volume and purpose thereof, and further, considering that capability may primarily be assessed based on professional skills, efficiency, experience and reliability – the following evidence may be furnished regarding the suitability of the technical capacity and professional qualification of the tenderer and its subcontractor intended to be employed for more than 10% of the contract value for the purpose of performing the contract

 

(a)   a list of not more than three of the major services provided during the last three years (indicating at least the dates of the delivery, the other party to the contract concluded, the subject matter of the delivery, as well as the sum of the consideration or another data referring to the quantity of the previous delivery);

 

(b)   the tenderer’s education and qualifications and/or those of the firm’s executive officers and, in particular, those of the person or persons responsible for providing the services;

 

(c)   a statement of the service provider's average annual manpower statistics and the number of executive officers for the last three years;

 

(d)   an indication of the experts (bodies) and managers involved in the supply of the service, indicating their qualifications, especially those responsible for quality control;

 

(e)   a statement of the tool, plant or technical equipment available to the service provider for carrying out the services;

 

(f)    a description of the service provider's measures for ensuring quality and his study and research facilities;

 

(g)   where the service is complex or required for a special purpose, a check carried out by the contracting authorities or by another body, on the production capacities of the supplier and if necessary on his study and research facilities and quality control measures;

 

(h)   an indication of the proportion of the contract which the service provider may intend to sub-contract;

 

(i)    providing a description, when appropriate, of the environmental measures that tenderer shall be able to provide in the course of fulfillment.

 

4.     Tenderer may rely on resources of other entities (organizations) in order to be in compliance with suitability requirements specified in paragraphs 1 to 3. In this case tenderer shall also[34] certify, the availability of the resources needed to implement the contract during the period of such implementation. Certification shall take effect by the presentation of the declaration of the organization in question concerning their undertaking to assume the relevant responsibility.

 

Article 68

 

1.     In respect of Article 67 (1) (a) and (3) (a), the following evidence shall be furnished:

 

(a)   if the other contracting party is a public authority specified in Article 22 (1) (a) to (e), a certificate issued or signed by the authority;

 

(b)   if the other contracting party is an entity other than that specified in point (a), a certificate issued by it or a declaration by the tenderer.

 

2.     In respect of Article 67 (2) (a), a certificate issued by the other contracting party shall be furnished. The certificate shall contain at least the amount, the time and place of delivery and a statement that performance has complied with the regulations and the contract.

 

3.     Tenderer shall be responsible for the correctness of the facts and data incorporated in the certificate or declaration according to paragraphs (1) and (2).

 

4.     Where contracting authorities require the submission of certificates issued by independent bodies for attesting the conformity of the tenderer (subcontractor) with certain quality assurance standards, they shall refer to quality assurance systems based on the relevant European standards series certified by bodies conforming to the relevant European standards series. Contracting authorities shall accept equivalent certificates from bodies registered in other Member States and shall also accept other evidence of equivalent quality assurance measures.

 

5.     If the contracting authority prescribes that the tenderer (subcontractor) must furnish, in respect of Article 67 (1) (b)-(c) and (f), or of Article 67 (3) (b), (d)‑(g) and (i), a certificate issued by an independent organization attesting their compliance with certain environmental management systems, then it shall refer to the eco-management and audit scheme (EMAS) attested by the organization according to the relevant Regulation of the European Union, or to the relevant European or international eco-management standards. The contracting authority shall accept any equivalent certification issued by an organization registered in another Member State of the European Union, as well as other evidence of equivalent eco-management systems.

 

Article 69

 

1.     The contracting authority may prescribe one or more of the methods of certification specified in Articles 66 and 67.

 

2.     The tender notice shall stipulate the criteria set out in Articles 66 and 67 whose fulfilment, non-fulfilment or specific degree of deficiency will cause the contracting authority to qualify the tenderer or the subcontractor intended to be employed for more than 10% of the contract value as unsuitable for the performance of the contract.

 

3.     The contracting authority shall confine the extent of the information and facts referred to in Articles 66 and 67 to the subject of the contract, also taking into consideration the legitimate interests of the tenderers (subcontractors) as regards the protection of their business secrets; furthermore, in respect of paragraph 2, only requirements – also depending on the estimated contract value – actually necessary for the performance of the contract may be prescribed.

 

4.     The contracting authority may specify different methods for tenderers and subcontractors intended to be employed for more than 10% of the contract value to verify their capability under Articles 66 and 67. If an identical verification method is specified, the tenderer and subcontractor intended to be employed for more than 10% of the contract value shall meet the stipulated capability terms pursuant to Article 66 (1) (a) and (b) independently, regarding other stipulated capability terms jointly, in order to be qualified for fulfilling the contract. Besides the capability terms provided in Article 66 (1) (a) and (b), the contracting authority may specify further capability terms that shall be met independently.

 

5.     In the event more than one tenderer present a joint tender, the tenderers, except the capability terms pursuant to Article 66 (1) (a) and (b), may jointly comply with the capability requirements, moreover Article 66 (2), and Article 67 (4) also may be applied.

 

The tender

 

Article 70

 

1.     Tenderers shall prepare and submit their tender in accordance with the requirements regarding the content and the form as defined in the tender notice and the tender specifications. The tender shall contain, in particular, the express declaration of the tenderer with regard to the conditions of the tender notice, the performance of the contract and the amount of the consideration requested, furthermore that the tenderer, in case of winning the contract, in order to perform the contract concluded pursuant to the contract award procedure, shall apply the provisions set out in Article 305 (1) to (3) and in Article 306/A (1) and (2), and consider them mandatory for itself under its further contracts based on the contract concluded pursuant to the contract award procedure[35].

 

2.     In respect of the grounds for exclusion, tenderers shall act in compliance with Article 63 (1)–(7)[36]. Furthermore, tenderers shall provide proof of the adequacy of their financial and economic standing, technical capability and professional qualification required for the performance of the contract and furnish the certificates thereon in the tender.

 

3.     A tenderer shall not submit another tender jointly with another tenderer for the same contract award procedure, and neither shall he participate in the same procedure as subcontractor intended to be employed for more than 10% of the contract value by another tenderer.

 

Article 71

 

1.     If prescribed by the contracting authority in the tender notice, the tender shall indicate

 

(a)   the proportion of the contract which the tenderer may intend to sub-contract, without specifying the body or person to be involved, or

 

(b)   the subcontractors intended to be employed by the tenderer for the performance of more than 10% of the contract value.

 

2.     The indication and employment of the subcontractors under paragraph 1 shall not affect the tenderer’s liability regarding performance.

 

3.     The tenderer shall not involve in the performance of the contract a subcontractor that is subject to the grounds for exclusion according to Article 60 or Article 61. In respect of subcontractors intended to be employed by the subcontractor for the performance of more than 10% of the contract, the grounds for exclusion set forth in Article 63 (1)–(7)[37] shall apply if the tenderer must name such subcontractors under paragraph 1 (b). In all other cases, and in respect of subcontractors intended to be employed by the tenderer for the performance of less than 10% of the contract, the tenderer shall formally declare in his tender that he will not employ for the performance of the contract any subcontractors subject to the grounds for exclusion.

 

4.     If prescribed by the contracting authority in the tender notice, proof shall be furnished on the financial and economic standing, technical capability and professional qualification of those subcontractors which are proposed to be contracted for more than ten per cent of the contract value and the relevant certificates furnished in the tender.

 

5.     If the subject of the public procurement is a public works or public works concession and the contracting authority is an organization according to Article 22 (1) (a) or (b), it shall prescribe to the tenderer in the tender notice to indicate in his offer the subcontractors envisaged to be engaged in excess of ten percent of the value of the public procurement.

 

Article 72

 

In the case of works contracts and the procurement of services, where a contracting authority has prescribed so, according to Article 55, that tenderer shall have to indicate in the tender that they have taken into account, when drawing up their tender, of the obligations relating to employment protection provisions and the working conditions, as well as the provisions for unhindered physical access which are in force in the place where the contract shall be implemented. This shall be without prejudice to the application of the provisions of Article 86 concerning the examination of tenders containing abnormally low consideration.

 

Article 73

 

1.     Exclusively and expressly, in the relevant Annex to their tender, tenderers may prohibit the public release of business secrets disclosed in their tender. The provision excluding the assignment of the contract concluded pursuant to a contract award procedure shall not be regarded as a business secret.[38]

 

2.     However, the tenderers may not prohibit the public release of their name, address (seat, residence) or any fact, information, solution or data (hereinafter jointly referred to as ‘data’) eligible for scores under the evaluation criteria. Furthermore, the disclosure of data of public interest and data publicised in the public interest that are subject to data supply and information obligation under the relevant law may not be prohibited by invoking business secrecy.

 

Time limit to submit tenders and the validity of tenders

 

Article 74

 

1.     The tendering deadline (time limit to submit tenders) shall be set by the contracting authorities at not less than 52 days from the date of dispatch of the notice.

 

2.     If the contracting authority has dispatched an indicative consolidated information notice at lease fifty-two days before, but no more than one year prior to the dispatch of the notice including the tender notice, which also contained the data available at the time of the dispatch of the tender notice according to the template invitation to tender notice, the time limit to submit tenders provided in paragraph 1 may be shorter. In this case the time limit to submit tenders shall not be shorter than thirty-six cays counted from the day of the dispatch of the notice containing the tender notice, except in the case of urgency, when the time limit may be shortened to twenty-two days, provided the notice has been dispatched using electronic means.

 

3.     The time limit for submitting a tender, according to paragraph 1 not less than fifty-two days, and according to paragraph 2 thirty-six days may be shortened by not more than seven days, providing the notice containing the invitation to tender has been dispatched by the contracting authority using electronic means according to the provisions of a separate act of legislation.

 

4.     The time limit for submitting a tender not less than fifty-two days, or thirty-six days, as well as the shortened time limit (forty-five days and twenty-nine days, respectively) according to this paragraph 3 may be shortened by not more than five days, provided the contracting authority, fully and without any charge, make the documentation accessible for the tenderers from the day the notice is published about the invitation to tender, and discloses the accessibility data in this notice.

 

5.     Where the tender documentation is too bulky or where tenders can only be drawn up after a visit on-site, or after an on-the-spot inspection of a site, the contracting authority shall take this into consideration in defining a longer time limit for submitting tenders compared to the provisions in paragraphs 1 to 4.

 

6.     The time limit to submit tenders shall always be set leaving sufficient time for the preparation of appropriate tenders.

 

Article 75

 

1.     In justified cases, the contracting authority may extend the time limit to submit tenders indicated in the initial tender notice on one occasion, provided that the extension of the time limit, together with the reason therefore, is published in a notice prior to the expiry of the original deadline.

 

2.     The time limit specified to submit tenders may not be reduced.

 

Article 76

 

1.     Up until the expiry of the time limit to submit tenders, the contracting authority shall have the right to modify the conditions specified in the tender notice or the tender specifications. Prior to the expiry of this deadline, a new notice shall be dispatched to fix a new time limit to submit tenders. Even in such cases, the deadline cannot be shorter than stipulated under Article 74 (1)–(4).

 

2.     The contracting authority shall have the right to revoke the tender notice up until the expiry of the time limit to submit tenders, dispatch a notice for publication prior to the expiry of the final date, and simultaneously inform the tenderers, to this effect.

 

Article 77

 

1.     Tenderers may modify their tenders up to the expiry of the time limit to submit tenders.

 

2.     After the expiry of the time limit to submit tenders, the submitted tenders may not be modified even with the consent of the contracting authority.

 

Article 78

 

1.     The binding period shall commence upon the expiry of the time limit to submit tenders.

 

2.     The tenderer shall be bound by its tender at least up to the date for signing the contract stipulated in the tender notice, unless the contracting authority has declared that it does not intend to award the contract to any of the tenderers.

 

Submission and opening of tenders

 

Article 79

 

1.     Tenders shall be submitted in writing, in a sealed envelope, by hand delivery or mail, to the address indicated in the tender notice, by the expiry of the time limit to submit tenders.

 

2.     The contracting authority may permit the submission of the tenders by a method alternative to that specified in paragraph 1, provided that it can guarantee that the tenders will not be opened before the expiry of the time limit to submit tenders and will not be disclosed to unauthorised users within the sphere of interest of the contracting authority.

 

3.     The contracting authority shall provide for the alternative method referred to in paragraph 2 in the tender notice, furthermore, it may require tenderers to confirm – by the expiry of the time limit fixed by the contracting authority – their tenders in writing. The contracting authority shall provide information about the technical conditions of the possibility referred to in paragraph 2 in the tender notice or in the tender specifications.

 

Article 80

 

1.     The documents containing the tenders shall be opened at the time of the expiry of the time limit fixed to submit tenders. The tender opening procedure shall last until all tenders submitted by the expiry of the time limit fixed for the receipt if tenders have been opened.

 

2.     The tender opening procedure may be attended by the contracting authority, the tenderers, and persons invited by them and – in case of contracting authorities receiving subsidy for the public procurement – the representatives of organisations and persons specified in the relevant legislation.

 

3.     Upon opening the tenders, the names and addresses (seat, residence) of the tenderers, as well as the main quantifiable particulars to be assessed according to the evaluation criteria (sub-criteria), shall be announced.

 

4.     The contracting authority shall draw up minutes of the opening and the announcing of the tenders, and shall distribute such minutes to all tenderers within two business days from the day of opening.

 

Evaluation of the tenders

 

Article 81

 

1.     In the course of evaluating the tenders, the contracting authority shall check the tenders for compliance with the conditions set in the tender notice, the tender specifications and by law.

 

2.     The suitability or unsuitability of the tenderer and, if stipulated by the contracting authority, of the subcontractor intended to be employed for the performance of more than 10% of the contract value, to perform the contract shall be assessed against the criteria set out in the tender notice. The assessment may involve the verification of the authenticity of the certifications and certified copies.

 

3.     The contracting authority shall determine which tenders are invalid or whether there are any tenderers to be disqualified from the procedure.

 

4.     Admissible tenders shall be assessed based on the evaluation criteria set forth in the tender notice (Article 57) and Articles 89 and 90.

 

5.     The contracting authority shall have the right to use the tenders solely for the purpose of their evaluation.

 

Article 82

 

The contracting authority shall evaluate the tenders, except if – due to unforeseeable and unavoidable reasons beyond its control – material circumstances arise after the start of the award procedure, which make it incapable to conclude the contract or to deliver under the contract once concluded. In such cases the contracting authority shall declare the procedure unsuccessful.

 

Article 83

 

1.     The contracting authority shall state in the invitation to tender if they will provide the possibility in the public procurement procedure to supply missing information, and the scope for providing such information. In procedures related to public procurement supported by sources from the European Union the contracting authority shall provide at least on one occasion the possibility for providing missing information.

 

2.     Where the contracting authority has provided comprehensively the possibility of supplying missing information, and this shall be found necessary after the examination of tenders, they may offer all tenderers the opportunity, under identical conditions, to subsequently attach certifications and declarations related to grounds for exclusion and capabilities, as well as other documents stipulated in the invitation to tender or in the tender specifications, to supply additional information or to rectify formal deficiencies related to the tender. Where the contracting authority has provided restrictedly the possibility of supplying missing information, missing information shall be accepted accordingly.

 

3.     The contracting authority shall inform all tenderers, at the same time, directly, and in writing about the supply of the missing items, setting out the time limit, as well as the information missing from each tender.

 

4.     Tenderer may supply missing information that has not been indicated in the request for missing information, in the case of restricted supply of missing information within the scope of the invitation to tender.

 

5.     After the missing information has been supplemented the contracting authority may announce, on more than one occasions if appropriate, a request for additional supply of missing information when they have observed an item missing that has not been included in earlier requests for missing information, and tenderer has not supplied this information pursuant to paragraph (4).

 

6.     Where the contracting authority has provided several occasions for supplying missing information, the information earlier indicated as missing cannot be supplemented in a subsequent supply of missing information.

 

7.     Supplying missing information shall not result in the modification of the substantive elements of the tender that shall be the subject of assessment according to Article 81 (4), in addition, in the course of the supply of missing information the tenderer shall not supplement the tender by naming and submitting the relevant documents of a new joint tenderer or of a subcontractor, or of an organization according to Article 66 (2), or of Article 67 (4), furthermore, a restricted supply of missing information may only cover missing items related to tender constituent elements set out by the contracting authority in the invitation to tender.

 

8.     When appropriate, the contracting authority shall ascertain whether the contents of the tender copies submitted after supplying missing information but not affected by the additional information correspond to the content of the original tender. In case of differences, or if the tenderer has failed to supply any or all of the missing items, only the original copy (copies) of the tender shall be taken into consideration in the course of evaluation.

 

Article 84

 

If the tender contains an obvious calculation error, it is corrected by the contracting authority by calculating the aggregate price based on the itemised value of the subject (core data) of the contract. All tenderers shall be advised forthwith in writing of the correction of the calculation error simultaneously and directly.

 

Article 85

 

In the course of evaluating tenders, the contracting authority may request information from the tenderer in writing and by simultaneously informing the other tenderers, for the purpose of clarifying the content of ambiguous statements, declarations or certifications related to the grounds for exclusion, suitability or other documents provided for in the tender notice or the tender specifications. This, however, may not result in the modification of the tender.

 

Article 86

 

1.     If a tender contains a consideration appearing to be abnormally low, the contracting authority shall request in writing details of the constituent elements of the tender which it considers relevant and an explanation. The contracting authority shall notify the other tenderers of such request simultaneously in writing.

 

2.     The contracting authority, on the basis of the explanations received and the documents available, shall verify the constituent elements of the tender, and may request tenderers to provide information concerning disputed constituent elements in the tender.

 

3.     The contracting authority may take into consideration objective explanations relating in particular to the cost-efficiency of the manufacturing process, the works and the provision of services, to the technical solutions chosen, to the exceptionally favourable delivery conditions available to the tenderer, or to the originality of the goods, works, or services proposed by the tenderer, to compliance with employment protection provisions and working conditions in force a the place of implementation of the contract for works, services, or goods, or to the possibilities tenderer possesses for obtaining state support.

 

4.     The contracting authority shall declare the tender invalid if it deems the explanation unsatisfactory and irreconcilable with economic rationality.

 

5.     The contracting authority shall declare invalid a tender for being abnormally low owing to state support only if previously they had requested in writing information in this respect from the tenderer, and the tenderer was unable to prove he obtained the relevant state support legally.

 

6.     The contracting authority shall communicate to the European Union, through the Public Procurement Council, the tender deemed invalid according to paragraph 5.

 

Article 87

 

1.     If a tender element to be assessed based on the constituent factors appears to involve an unfeasible, abnormally low or high, or disproportionate undertaking, the contracting authority shall request in writing details of the affected constituent elements of the tender which it considers relevant and an explanation. The contracting authority shall notify the other tenderers of such request thereof simultaneously in writing.

 

2.     The contracting authority, on the basis of the explanations received and the documents available, shall verify the constituent elements of the tender and the feasibility of such, and may request tenderers to provide information concerning disputed constituent elements in the tender.

 

3.     The contracting authority shall declare the tender invalid if it deems the explanation unacceptable and not reconcilable with economic rationality.

 

4.     The contracting authority must communicate to the Public Procurement Council the rejection of tenders specified under paragraph 3.

 

Article 88

 

1.     The tender shall be deemed invalid if

 

(a)   it is submitted after the expiry of the time limit to submit tenders stipulated in the  tender notice;

 

(b)   the tenderer failed to provide the tender bond altogether or in accordance with the prescribed conditions;

 

(c)   the tenderer or its subcontractor does not fulfil the conflict of interest criteria (Article10);

 

(d)   the tenderer or subcontractor has been disqualified from the procedure;

 

(e)   the tenderer or its subcontractor intended to be employed for the performance of more than 10% of the contract value does not comply with the suitability conditions required for delivering under the contract;

 

(f)    the tenderer or its subcontractor intended to be employed for the performance of more than 10% of the contract value does not comply with any other conditions stipulated in the tender notice, the tender specifications and by law;

 

(g)   the consideration offered is abnormally low [Article 86 (4) [39]];

 

(h)   it contains unfeasible, abnormally low or high, or excessively disproportionate undertaking [Article 87 (3)];.

 

2.     The contracting authority must disqualify tenderers from the procedure who (or whose subcontractor)

 

(a)   submitted the tender in spite of the existence of grounds for exclusion (Articles 60–61);

(b)   grounds for exclusion (Articles 60–62) arose during the course of the procedure.

 

3.     The contracting authority shall disqualify a tenderer from the procedure if the organization according to Article 66 (2), or Article 67 (4)

 

(a)   is under the effect of grounds for exclusion (Article 60);

 

(b)   became under the effect of grounds for exclusion (Article 60) during the course of the procedure.

 

4.     The contracting authority may disqualify from the procedure those tenderers who

 

(a)   are not eligible for national treatment [Article 1 (3)]; or

 

(b)   offers a product in the tender not eligible for national treatment due to its place of origin [Article 1 (3)].

 

5.     The place of origin of products shall be established based on the rules stipulated in the relevant legislation and in the Council Directive on the Community Customs Code.

 

6.     The contracting authority need not assess invalid tenders based on the Evaluation criteria.

 

Article 89

 

1.     In the case of variant (alternative) offers only those may be admissible which meet the minimum requirements and technical specifications laid down in the tender notice or the tender specifications and required by the contracting authority.

 

2.     Contracting authorities may not reject the submission of a variant offer on the sole grounds that

 

(a)          

 

(b)   it would lead, if successful, to a supply contract rather than a public service contract, or vice versa.

 

Article 89/A

 

1.     When specified according to Article 58 (3) (a) concerning public procurement technical specifications, a tender shall not be declared invalid exclusively for the reason the products and services incorporated thereto do not comply with the standards or other proscriptions provided in the technical specification if tenderer in an appropriate manner, using any appropriate means shows that the solutions recommended comply equivalently to the requirements provided in the public procurement technical specification. The technical documentation of the manufacturer or the certification [Article 58 (6)] of an independent, or a professionally recognized body particularly may be considered as appropriate means.

 

2.     When the public procurement technical specification is provided with reference to performance and functional conditions, a tender shall not be declared invalid that complies with national standards transposing European standards, European technical approvals, common technical specifications, international standards, technical reference systems established by the European standardization bodies when these specifications refer to the performance or functional conditions provided by the contracting authority. Tenderer shall provide evidence in his tender, appropriately, using appropriate means, that the product, services or works complying with standards comply with the performance and functional conditions provided by the contracting authority.  The technical documentation of the manufacturer or the certification [Article 58 (6)] of an independent, or a professionally recognized body particularly may be considered as appropriate means.

 

Article 90

 

1.     Where the criterion for the award of the contract is that of the best-value-for-money tender, the contracting authorities shall give the elements the scores within the range specified in the tender notice, by the method described in Article 57 (3) (d), then weighs the scores given to the individual constituent elements and aggregates the products of multiplication for each tender. The best-value-for-money tender will have the highest aggregate score.

 

2.     Should the total score of several tenders calculated according to paragraph 1 be identical, the tender offering the lower price shall be deemed the best-value-for-money one; while in the event of identical prices, it shall be the tender which received higher score for the constituent factor (having been given a different score) with the largest weight.

 

3.     In the presence of a notary public the contracting authority may hold a drawing of lots and declare winner the tenderer selected on the basis of the drawing of lots, if

 

(a)   the contracting authority shall base the award of the contract to the tender offering the lowest price and this lowest price is contained identically in two or more tenders, or

 

(b)   the evaluation criteria for tenders are the selection of the most economically advantageous tender, but the most economically advantageous tender cannot be determined applying the provisions of paragraph 2.

 

4.     The winner of the contract award procedure shall be selected by a drawing of lots for tenderers having submitted valid tenders with identical prices according to paragraph (3) (a), and for tenderers having identical aggregated scores according to paragraph (3) (b).

 

5.[40] After the evaluation of tenders according to Article 81 (4), the contracting authority may start an electronic downward revision of prices, if they have indicated this previously in the invitation to tender. A separate act of legislation shall define the detailed rules for the electronic downward revision of prices.

 

Article 91

 

1.     The contract shall be awarded to the tenderer who has submitted to the contracting authority an admissible tender complying with the conditions stipulated in the tender notice and the tender specifications and deemed the most favourable based on the Evaluation criteria stipulated in Article 57 (2).

 

2.     The contracting authority may only conclude the contract with the winner of the procedure or upon the withdrawal of the winner – provided that this was stated in the tender notice – with the organisation (person) considered the tenderer offering the second most favourable terms at the time of the announcement of the results.

 

Article 92

 

The procedure shall be deemed unsuccessful if

 

(a)   no tenders have been submitted;

 

(b)   only invalid tenders have been submitted;

 

(c)   none of the tenderers, not even the tenderer submitting the best-value-for-money tender, meets the requirements for financial cover available to the contracting authority;

 

(d)   the contracting authority declares the procedure unsuccessful due to its becoming incapable to conclude the contract or deliver thereunder (Article 82);

 

(e)   the contracting authority decides to invalidate the procedure due to action by a tenderer that materially damages the correctness of the procedure or the interests of the other tenderers;

 

(f)    the contracting authority announces the procedure unsuccessful based on the results of a conciliation procedure.

 

(g)   the Arbitration Committee of Public Procurements annuls a decision by the contracting authority, and the contracting authority decides to conduct a new contract award procedure or to relinquish its intention to conduct such procedure.

 

Information on the evaluation of the tenders, the announcement of results

 

Article 93

 

1.     Within five days of passing a decision to this effect, the contracting authority shall inform the tenderer in writing of its exclusion, or being deemed unsuitable for performing the contract, or the classification of its tender as invalid on any other grounds pursuant to Article 88 (1), as well as of the relevant reasons.

 

2.     Upon completing the evaluation of the tenders, the contracting authority shall prepare a written summary of the tenders following the template specified in the relevant legislation.

 

3.     The summary as per paragraph 2 shall be submitted, upon request, to the European Commission and the Public Procurement Council. The summary shall be sent to the European Commission via the Public Procurement Council.

 

Article 94

 

1.     The contracting authority shall evaluate the tenders as soon as possible, and subsequently announce the success or failure of the procedure (hereinafter jointly referred to as ‘announcement of results’). The results of the procedure shall be publicly announced within thirty – or, with public works, sixty – days from the opening of the tenders, on the date of announcing the results specified in the tender notice.

 

2.     If justified, the contracting authority may postpone the date of announcing the results on one occasion, by a maximum of thirty days. Prior to the expiry of the original time limit, the contracting authority shall inform all tenderers simultaneously, directly and in writing of the fact of, and the reasons for, the postponement and, if required [Article 99 (2)], of the new date for contract conclusion [Article 99 (2)].

 

3.     If necessary, in cases as per paragraph 2 the contracting authority may request the tenderers to sustain their tenders until the expiry of the new date of contract conclusion. Unless otherwise declared, tenderers shall be bound to their tenders until the expiry of the new date of contract conclusion.

 

4.     If justified, the contracting authority may announce the results at a date earlier than stipulated in the tender notice. The contracting authority shall inform all tenderers simultaneously, directly and in writing of the new date and time and its reasons, as well as – if justified – of the new earlier date and time of the contract conclusion [Article 99 (2)], at least two business days in advance.

 

5.     If the announcement of results fails to take place at the date and time stipulated in the tender notice or modified as per paragraph 2 or 4, the contracting authority shall – along with bearing all consequences attached to such delays by this Act or other legislation – without delay announce the success or the failure of the procedure.

 

Article 95

 

The tenderers and – in case of contracting authorities receiving public procurement aid/support – the representatives of the organisations or the persons stipulated in the relevant legislation shall be invited to the announcement of results.

 

Article 96

 

1.[41]  At the announcement of results the contracting authority shall explain the data in the summary as per Article 93 (2). The written summary shall be handed over to the tenderers present at the announcement of results, and sent to absent tenderers without delay by telefax or electronically on the day when the announcement was made, after the announcement of results. If the bidder has not provided their electronic address or telefax number the written summary shall be posted on the day when the announcement was made.

 

2.     At the announcement of results the winner of the procedure shall declare whether it classifies as a micro, small or medium-sized enterprise under the Act on Small and Medium-Size Enterprises and the Support of their Development.

 

3.     At or after the announcement of results, the disclosure of such data as are governed by Article 73 (2) or have been taken into consideration by the contracting authority in its assessment of the tender and its decision, shall not be limited or prohibited by invoking business secrecy.

 

4.     At the announcement of the results or within five days thereafter the tenderer may request that the contracting authority correct any errors (change of names, incorrectly spelt names, mistyped numbers, calculation errors or similar) found in the summary referred to in Article 93 (2). The contracting authority may correct such errors at the tenderer’s request as well as in the absence thereof. The contracting authority shall send the corrected summary simultaneously to all tenderers within seven days following the announcement of the results.

 

5.     Within fifteen days counted from the date of the announcement of the contract award, or if the contract has been concluded prior to the fifteenth day counted from the announcement of the contract award, the contracting authority may correct the written summary referred to in Article 93 (2), and if appropriate may retract the communication regarding invalidity should they observe after the announcement of the contract award that the announcement of the award (or of the invalidity) violated law, and the correction provides legal remedy thereto. The contracting authority shall communicate the date for the announcement of the corrected summary and of the award (the invalidity) two working days before such an announcement, simultaneously to all tenderers. Article 93 and Article 95, as well as paragraphs (1) to (4) of this Article shall apply in connection with the corrected result (invalidity), in addition the contracting authority may ask tenderers to maintain the validity of tenders until the new date of the contract award expires. Unless otherwise declared the tender shall be binding for tenderer until the expiry of the new date for the contract award.

 

Article 97

 

On request by tenderers submitting admissible tenders, the contracting authority shall provide information regarding the features of the winning tender and its advantages over the tender submitted by the requestor within five business days from receiving the request, taking into consideration the winning tenderer’s interests regarding confidential business information (Article 73).

 

Article 98

 

1.     The contracting authority shall publish the information regarding the success or the failure of the procedure in a notice based on a template specified in the relevant legislation.

 

2.     The notice shall be dispatched for publication in the Public Procurements Bulletin no later than within five business days from the announcement of results, or the expiry of the deadline for the announcement of results.

 

3.     The notice shall be dispatched for publication pursuant to Article 44 (1) no later than within five business days from the conclusion of the contract, or, in the absence thereof , from the expiry of the deadline for the conclusion of the contract.

 

4.     The contract award procedure shall end upon the publication of the notice as per paragraph 2 or, if the contract conclusion takes place at a later date, then at the time of the latter.

 

Conclusion of the contract

 

Article 99

 

1.     Contracts shall be concluded based on successful contract award procedures, in writing with the organisation (person) stipulated in Article 91, in accordance with the content of the tender notice, the tender specifications and the tender. If the contracting authority allowed submitting tenders for parts of the public procurement, then contracts shall be concluded with the various winners of the different parts (Article 91). As required and in agreement with the tenders and the tender notice, this contract may include the conditions for cooperation between tenderer contracting parties.

 

2.     The planned date and time of contract conclusion shall be stipulated in the tender notice on the condition that it shall not be earlier than the eighth or later than the thirtieth – or, with public works, sixtieth – day from the announcement of results.

 

3.     The contracting authority shall be relieved of its obligation to conclude a contract with the organisation (person) as per Article 91 only if – due to unforeseeable and unavoidable reasons beyond its control – material circumstances arise after the start of the public procurement, which make the contracting authority incapable to conclude or deliver under the contract.

 

4.     The contract shall be public, with the exception of the annex as per Article 73 (1), on the condition that the contents thereof are not in contradiction with Article 96 (3), and its content shall classify as data of public interest. The contracting authority shall publish that part of the contract that is considered being data of public interest on their website, if it has one, immediately after having signed the contract.[42]

 

 

Title 4

 

Overall rules of two-stage procedures

 

The participation stage

 

Article 100

 

1.     Negotiated procedures and restricted procedures, which start with the publication of a notice, as well as the competitive dialogue, are two-stage procedures.

 

2.     In the first – participation – stage of such procedures, the contracting authority shall not request and the candidate shall not submit tenders. In the participation stage the contracting authority shall decide about the candidate’s suitability or unsuitability to deliver under the contract.

 

Start of the procedure, invitation to participate

 

Article 101

 

1.     The two-stage procedures start with the invitation to participate, which shall be issued by the contracting authority based on the template specified in the relevant legislation.

 

2.     The invitation to participate shall be governed by the provisions under open procedures (Title 3) regarding tender notice as appropriate, with differences applicable as per paragraphs 3–4 and Article 120 (2).

 

3.     The invitation to participate may specify in particular

 

(a)   the planned date of the announcement of the results of the procedure and of contract conclusion and

 

(b)   information regarding the availability of the tender specifications and the tender bond

 

4.     The invitation to participate shall specify

 

(a)   the deadline and address for submitting the application to participate (participation deadline);

 

(b)   the place and time of opening the applications to participate;

 

(c)   the parties authorised to attend the opening of the applications to participate;

 

(d)   the date and time of announcing the results of the participation stage;

 

(e)   the planned date of sending the invitation to tender (Article 119).

 

5.     In the participation stage of the procedure, participation is not conditional upon depositing a tender bond.

 

Participation documentation or descriptive document

 

Article 102

 

1.     In order to facilitate the submittal of suitable applications to participate the contracting authority may choose to draw up participation documentation in restricted and in negotiated procedures, and in competitive dialogues shall draw up a descriptive document. The contracting authority shall specify in the invitation to participate the manner, time limit, location and financial conditions for obtaining the participation documents, or the descriptive documents (in the following: participation documents). The contracting authority may prescribe in the invitation to participate that participation in the procedure is subject to the purchase or receipt of the participation documentation. If more than one participant submit a joint application for participation, it shall be appropriate if one of these purchases or receives the participation documentation.

 

2.     The contracting authority shall ensure that the participation specifications be available from the date of issuing the notice containing the invitation to participate until the expiry of the deadline (Article 107).

 

3.     Provided they have been requested in reasonable time and paid for, the participation specifications shall be forwarded by the contracting authorities or its designated organisation within two business days of receiving such request.

 

4.     The consideration for the participation documents shall be established on the basis of the costs incurred during the contract award procedure in relation to its production and distribution to the candidates.

 

5.     The tender specifications and their consideration shall be returned within ten days if

 

(a)   the contracting authority revokes the invitation to participate;

 

(b)   the participation stage of the procedure proves unsuccessful under Article 115 (c), (e) or (f);

 

(c)   the contracting authority fails to announce the results of the participation stage until the result announcement date stipulated in the invitation to participate or in its modification;

 

(d)   the contracting authority does not send the invitation to tender within five business days from the announcement of results.

 

6.[43] 

 

Supplementary information

 

Article 103

 

1.     In order to be able to submit suitable applications to participate, candidates may submit requests in writing for additional (interpretative) information regarding the contents of the invitation to participate or the participation documents from the contracting authority or its designated organisation no later than eight days prior to the expiry of the participation deadline.

 

2.     Such additional information shall be given no later than four days prior to the expiry of the participation deadline.

 

3.     Such additional information shall be given without harming the equal opportunities of candidates. The full contents of such additional information shall be made accessible, or sent, to the candidates. The information provided shall not result in the modification of the participation notice or participation documents.

 

4.     Additional information may also be given in the form of consultations. In such cases the invitation to participate shall specify the date and time of the consultation. Minutes shall be drawn up of the consultation, sent to the attending candidates within five days from the consultation and made accessible to the other candidates also.

 

Applications to participate

 

Article 104

 

1.     The candidate shall draw up and submit the application to participate in accordance with the substantive and formal requirements stipulated in the invitation to participate and the participation documents.

 

2.     Entities liable to the grounds for exclusion shall not participate in either the participation or the tendering stage. As regards the grounds for exclusion, candidates shall observe Article 63 (1)–(7)[44].

 

3.     Furthermore, candidates shall certify, in the manner stipulated in the invitation to participate, their financial and economic standing, as well as technical capability and professional qualification to perform under the contract, and shall provide such certifications by including them in the application to participate.

 

Article 105

 

1.     The application to participate shall designate the following, if required so by the contracting authority in the invitation to participate:

 

(a)   the part of the contract award procedure, in relation to which the candidate will conclude contracts with third parties, without identifying the relevant organisations (persons), and

 

(b)   subcontractors the candidate intends to employ for the performance of more than 10% of the contract value.

 

2.     Designation and utilisation as per paragraph 1 above shall not impact the candidate’s liability for performance.

 

3.     The candidate shall not involve subcontractors in delivering under the contract who are liable to the grounds for exclusion specified in Articles 60 and 61. Measures as per Article 63 (1) to (7)[45] shall be taken in relation to subcontractors intended to be employed for the performance of more than 10% of the contract value liable to the grounds for exclusion only if the candidate is required to specify such subcontractors in accordance with paragraph 1 (b) above. Otherwise, and in respect of subcontractors intended to be employed for the performance of less than 10% of the contract value, candidates shall formally declare in their applications to participate that they will not employ any subcontractors liable to the grounds for exclusion.

 

4.     If required by the contracting authority in the invitation to participate, the financial and economic standing, as well as technical capability and professional qualification to perform under the contract shall be certified for all those subcontractors that the candidate intends to rely on to an extent exceeding 10% ten per cent of the public procurement value, and such certifications shall be included in the application to participate.

 

5.     If the subject of the public procurement is a public works or public works concession and the contracting authority is an organization according to Article 22 (1) (a) or (b), it shall prescribe to the tenderer in the invitation to tender to indicate in his offer the subcontractors envisaged to be engaged in excess of ten percent of the value of the public procurement.

 

Article 106

 

1.     The candidate shall have the right to forbid expressly the public disclosure of business secrets disclosed in the application to participate in a separate annex attached thereto.

 

2.     However, the candidate shall not have the right to forbid the disclosure of its name, address (registered seat, residence). Nor is it possible to forbid, by invoking business secrecy, the disclosure of such data as are subject to the reporting and data provision obligation relating to publication of data of public interest and data publicised in public interest, as specified in the relevant legislation.

 

Participation deadline

 

Article 107

 

1.     The contracting authority shall not determine the participation deadline earlier than a period of thirty-seven days from the day of issuing the notice containing the invitation to participate. The participation time limit of at lease thirty-seven days may be shortened by not more than seven days, provided the notice containing the invitation to participate was dispatched by the contracting authority using electronic means according to the provisions of a separate act of legislation.

 

2.     In all cases, the participation deadline shall be determined in a manner that allows sufficient time for submitting suitable applications to participate.

 

3.     If justified, the contracting authority shall have the right to extend the participation deadline stipulated in the notice initiating the procedure, on one occasion by publishing the modified deadline and the reasons therefore in a notice, before the expiry of the original deadline.

 

4.     The participation deadline shall not be brought forward.

 

Article 108

 

1.     Until the expiry of the participation deadline, the contracting authority shall have the right to modify the conditions stipulated in the invitation to participate and the participation specifications. Such modified conditions shall be announced prior to the expiry of the original deadline in a new notice, which shall set a new participation deadline. The deadline shall not be shorter than stipulated in Article 107 (1) in such cases either.

 

2.     The contracting authority shall have the right to revoke the invitation to participate until the expiry of the participation deadline. The contracting authority shall announce such revocation in a notice dispatched prior to the expiry of the deadline to be published and shall simultaneously inform all candidates in writing.

 

3.     The candidate shall have the right to modify its application to participate until the expiry of the participation deadline.

 

Submission and opening of the applications to participate

 

Article 109

 

1.     The application to participate shall be submitted, in writing and sealed and directly or by post, to the address specified in the invitation to participate, by the expiry of the deadline to participate.

 

2.     The contracting authority may permit the submission of applications to participate by an alternative method to that specified in paragraph 1, provided that it can guarantee that the applications will not be opened before the expiry of the deadline to participate and disclosed to unauthorised users within the sphere of interest of the contracting authority.

 

3.     The contracting authority shall establish the option as per paragraph 2 in the invitation to participate, and shall also require the candidate to confirm the application in writing until the expiry of the deadline set by the contracting authority. The contracting authority shall disclose the technical conditions of the alternative method provided for in paragraph 2 in the invitation to participate or in the participation documents.

 

Article 110

 

1.     The documents containing the applications to participate shall be opened at the time of the expiry of the participation deadline. The tender opening procedure shall last until all applications submitted by the expiry of the time limit have been opened.

 

2.     At the opening of the applications to participate, the contracting authority, the candidates, and persons invited by them, and – in case of candidates receiving support for the public procurement – the representatives of organisations and persons determined in the relevant legislation shall have the right to be present.

 

3.     Upon opening the applications to participate, the names and addresses (registered seats, residences) of the candidates shall be announced.

 

4.     The contracting authority shall draw up minutes of the opening and the announcing of the applications to participate, and shall distribute such minutes to all candidates within five days from the day of opening.

 

Assessment of applications to participate

 

Article 111

 

1.     In the course of assessing the applications to participate, the contracting authority shall check the applications for compliance with the conditions set out in the invitation to participate, the participation specifications and by law.

 

2.     The suitability or unsuitability of the candidate and its subcontractor intended to be employed for the performance of more than 10% of the contract value shall be assessed against the stipulations of the invitation to participate. The assessment may involve the verification of the authenticity of the certifications.

 

3.     The contracting authority shall determine which applications to participate are invalid or whether there are any candidates to be excluded from the procedure.

 

4.     The contracting authority shall assess the applications to participate except if – due to unforeseeable and unavoidable reasons beyond its control – material circumstances arise after the start of the award procedure, which make it incapable to conclude the contract or to deliver under the contract once concluded. In such cases the contracting authority shall declare the procedure unsuccessful.

 

Article 112

 

1.     The contracting authority shall state in the invitation to participate whether they shall provide for candidates in the stage of participation the opportunity to supply missing information, as well as the scope for the supply of such information. In the case of procedures for public procurement supported by sources from the European Union the contracting authority shall provide at least one occasion for the opportunity to supply missing information.

 

2.     When the contracting authority provides for a fully comprehensive supply of missing information, and the examination of the applications to participate prove this necessary, it may provide for every participant, subject to identical conditions, the opportunity to subsequently attach or to rectify deficiencies in certifications and declarations related to grounds of exclusion and to compliance, or as well as in other documents stipulated in the invitation to participate or in the participation documentation, or to rectify formal deficiencies related to the application to participate. If in the invitation to participate a limited supply of missing information has been provided, the contracting authority shall provide an opportunity for this accordingly.

 

3.     When supplying missing information the candidate shall not supplement their application to participate by naming a new joint tenderer or subcontractor, was well as a new organization according to Article 66 (2) or Article 67 (4), in addition a limited supply of missing information shall extend only to the deficiencies indicated by the contracting authority in the invitation to participate.

 

4.     The contracting authority shall inform simultaneously, directly, in writing all candidates, indicating the time limit for providing missing information, as well as the deficiencies in each tender.

 

5.     A candidate my rectify a deficiency not included in the announcement of missing information, in case of a limited opportunity for providing missing information within the scope of the invitation to participate.

 

6.     After the missing information has been provided the contracting authority may, on several occasions if appropriate, announce a new opportunity to provide missing information, when they observe a deficiency indicated in previous announcements, and this has not been rectified by the candidate according to paragraph 5.

 

7.     When the contracting authority provides for more than one opportunity to supply missing information, deficiencies indicated earlier shall not be rectified as a subsequent supply of missing information.

 

8.     After the supply of missing information the contracting authority shall check whether the contents of the copies of the tender for participation submitted and not effected by the request for additional information, are identical with the contents of the original tender for participation. If there is any variance, or if the request for supplying additional information has not, or has not been fully fulfilled, only the original copy (copies) of the tender for participation shall be considered in the course of evaluation.

 

Article 113

 

In the course of assessing the applications to participate, the contracting authority may request information from the candidate in writing while simultaneously informing the other candidates to that effect, for the purpose of clarifying the content of ambiguous statements, declarations or certifications. This, however, may not result in the modification of the application to participate.

 

Article 114

 

1.     The application to participate shall be deemed invalid if

 

(a)   it is submitted after the expiry of the participation deadline stipulated in the invitation to participate;

 

(b)   the candidate submits a tender [Article 100 (2)];

 

(c)   the applicant or its subcontractor fails to meet the conflict-of-interest regulations [Article 10 (3) and (5)];

 

(d)   the candidate or its subcontractor has been disqualified from the procedure;

 

(e)   the candidate or its subcontractor 10% does not comply with the suitability conditions required for delivering under the contract;

 

(f)    it does not comply with any other conditions stipulated in the invitation to participate, the participation documents or by law.

 

2.     The contracting authority must disqualify candidates from the procedure, if

 

(a)   the candidate (or its subcontractor) submitted the application to participate in spite of the existence of grounds for exclusion (Articles 60–61);

 

(b)   grounds for their exclusion (Articles 60–62) arose during the course of the procedure.

 

3.     The contracting authority may disqualify from the procedure those candidates who are not eligible for national treatment [Article 1 (3)].

 

Article 115

 

The participation stage and the procedure shall be deemed unsuccessful if

 

(a)   no applications to participate have been submitted;

 

(b)   only invalid applications to participate have been submitted;

 

(c)   the contracting authority declares the procedure unsuccessful due to its becoming incapable to conclude the contract or deliver thereunder [Article 111 (4)];

 

(d)   the contracting authority decides to invalidate the procedure due to action by a candidate that materially damages the correctness of the procedure or the interests of the other candidates;

 

(e)   the contracting authority announces the procedure unsuccessful based on the results of a conciliation procedure.

 

(f)    the Arbitration Committee of Public Procurements annuls a decision by the contracting authority, and the contracting authority decides to conduct a new contract award procedure or to relinquish the intention to conduct such procedures.

 

Information on the assessment of applications to participate, the announcement of the results of the participation stage

 

Article 116

 

1.     The contracting authority shall inform the candidate in writing of its exclusion, the ascertainment of its unsuitability for delivering under the contract, or the declaring invalid of its application to participate for any other reasons pursuant to Article 114 (1), as well as the reasons therefore within five days from the decision to this effect.

 

2.     The contracting authority shall prepare a written summary based on the template in the relevant legislation about the applications to participate upon the completion of their assessment, in which summary it shall provide reasons for the suitability or unsuitability of candidates according to  the suitability criteria stipulated in the invitation to participate.

 

Article 117

 

1.     The contracting authority shall assess the applications to participate within as short a timeframe as possible, and thereon announce the success or failure of the participation stage (hereinafter jointly referred to as ‘announcement of results’). The results of the participation stage shall be publicly announced within thirty – or, with public works, sixty – days from the opening of the applications to participate, at the result announcement deadline stipulated in the invitation to participate.

 

2.     If justified, the contracting authority may postpone the date of the announcement of results on one occasion, by a maximum of thirty days. Prior to the expiry of the original deadline, the contracting authority shall inform all candidates directly and in writing of the fact of, and reason for, the postponement.

 

3.     If justified, the contracting authority may announce the results at a date earlier than stipulated in the invitation to participate. The contracting authority shall inform all candidates simultaneously, directly and in writing of the fact of, and reason for, the new date and time minimum two business days in advance.

 

4.     If the announcement of results fails to take place at the date and time stipulated in the invitation to participate or modified as per paragraph 2 or 3, the contracting authority shall – along with bearing all consequences attached to such delays by this Act or other legislation – without delay announce the success or the failure of the participation stage.

 

5.     The candidates and – in case of candidates receiving public procurement aid/support – the representatives of the organisations or persons stipulated in the relevant legislation shall be invited to the announcement of results.

 

Article 118

 

1.[46]  At the announcement of the results of the participation stage the contracting authority shall explain the data in the summary as per Article 116 (2). The written summary shall be handed over to the candidates present at the announcement of results, and sent to absent candidates without delay by telefax or electronically on the day when the announcement was made, after the announcement of results. If the candidate has not provided either their telefax number or their electronic address, the written summary shall be posted on the day of the announcement.

 

2.     The summary shall also be sent to the Council for Public Procurement by the deadline stipulated in paragraph 1.

 

3.     If the participation stage is unsuccessful under Article 115 (c), (d) (e) or (f), or if the contracting authority decides to conduct a new contract award procedure, then it must inform forthwith the Office for Official Publications of the European Communities of its decision through the Council for Public Procurement.

 

4.     At or after the announcement of results, the disclosure of such data as are governed by Article 106 (2) or have been taken into consideration by the contracting authority in its assessment of the application to participate and its decision, shall not be limited or prohibited by invoking business secrecy.

 

5.     At the announcement of the results or within five days thereafter the candidate may request that the contracting authority correct any errors (change of names, incorrectly spelt names, mistyped numbers, calculation errors or similar) found in the summary referred to in Article  116 (2). The contracting authority may correct such errors at the candidate’s request as well as in the absence thereof. The contracting authority shall send the corrected summary simultaneously to all candidates within seven days following the announcement of the results.

 

Tendering stage, invitation to tender

 

Article 119

 

If the participation stage is successful, then the contracting authority shall, within five business days from the announcement of results, simultaneously send a written invitation to tender to candidates selected in compliance with the rules of the restricted or the negotiated procedures and the invitation to participate and classified as suitable.

 

Article 120

 

1.     As a minimum, the invitation to tender shall contain the following:

 

(a)   the name and address, telephone and facsimile number (e-mail) of the contracting authority;

 

(b)   reference to the issued invitation to participate and the date of its issue;

 

(c)   the method of, and deadline for, supplying the tender specifications, their place of obtainment and financial conditions, if such conditions were not specified by the contracting authority in the invitation to participate and if it did not send the tender specifications simultaneously with the invitation to tender;

 

(d)   as required in the invitation to participate and if necessary, the definition of certifications, declarations and documents to be attached to the tender, which shall prove that neither the tenderer nor its subcontractor is liable to the grounds for exclusion at the time of the tendering stage,;

 

(e)   whether the correction of deficiencies is allowed or prohibited ;

 

(f)    the deadline for submitting the tender;

 

(g)   the tender submittal address;

 

(h)   the language (languages) of the tender;

 

(i)    the place and time of opening the tenders;

 

(j)    the parties authorised to be present at the opening of the tenders;

 

(k)   the validity period of the tender (except in negotiated procedures);

 

(l)    the date and time of the announcement of results and the planned date and time of contract conclusion, if these were not included, or were different, in the invitation to participate;

 

(m)  the date of sending the invitation to tender.

 

2.     Under open procedures (Title 3) Article 54 (6) (a), Article 56 (5), Article 59, Article 79 (3) and Article 83, invitation to tender shall be construed as tender notice.

 

3.     The invitation to tender may contain the requirements and conditions that, according to the rules of open procedures, can be stipulated in the tender specifications also [Article 51 (3), Article 57 (5), Article 58 (1) and (5), Article 79 (3)].

 

Article 121

 

1.     The contracting authority must ensure that the tender specifications are available for minimum thirty days from the day of sending the invitation to tender until the expiry of the deadline for submitting the tender.

 

2.     Tenderers may request supplementary information in respect of tendering, relating to the content of the invitation to participate, invitation to tender or the tender specifications.

 

3.     The tenderer shall draw up and submit its tender in compliance with the content and format requirements stipulated in the invitation to participate, the invitation to tender and the tender specifications. The tender shall contain especially the tenderer’s explicit statements regarding the conditions of the invitation to participate and the invitation to tender, the delivery under the contract and the requested consideration.

 

4.     The tenderer and its subcontractor shall follow the procedure stipulated in the invitation to tender – based on Article 120 (1) (d) – regarding grounds for exclusion. It need not attach to the tender those certifications and declarations that it had already attached to the application to participate, except if the previously submitted certification or declaration is not adequate for the purposes of certifying as required.

 

5.     The contracting authority shall have the right to extend the time limit specified for submitting the tender stipulated in the invitation to tender on one occasion if justified, provided that it informs all the tenderers before the expiry of the original deadline simultaneously, directly and in writing of the modified deadline and the reason for its extension.

 

6.     Up until the expiry of the time limit to submit tenders, the contracting authority shall have the right to modify conditions not given in the invitation to participate and determined in the invitation to tender or the tender specifications. Prior to the expiry of this time limit, all tenderers shall be notified of the modified conditions simultaneously, directly and in writing, and at the same time a new time limit to submit tenders shall be set. Even in such cases, the deadline cannot be shorter – for restricted procedures – than stipulated under Article 122.

 

7.     The contracting authority shall have the right to revoke the invitation to tender until the expiry of the time limit to submit tenders, if – due to unforeseeable and unavoidable reasons beyond its control – material circumstances arise after sending the invitation to tender, which make it incapable to conclude the contract or to deliver under the contract once concluded. All tenderers shall be informed simultaneously, directly and in writing of the revocation of the invitation to tender prior to the expiry of the time limit to submit tenders. In such cases the contracting authority shall declare the procedure unsuccessful. The notice about the unsuccessful outcome of the procedure shall be published according to Article 98 with the derogation that the contracting authority shall dispatch the notice referred to in paragraph 2 within five business days after the tenderers are informed as referred to above.

 

8.     In the course of evaluating the tenders the contracting authority shall check tenders for compliance with the conditions set forth in the invitation to participate, the invitation to tender, the tender documentation, in law, as well as in the descriptive document in the case of a competitive dialogue.

 

9.     The contracting authority shall evaluate the tenders except if – due to unforeseeable and unavoidable reasons beyond its control – material circumstances arise after the expiry of the time limit to submit tenders, which make it incapable to conclude the contract or to deliver under the concluded contract. In such cases the contracting authority shall declare the procedure unsuccessful.

 

10.  The supply of missing information in the stage of the presentation of a tender shall be governed by the provisions of Article 83.

 

Title 5

 

Restricted procedures

 

The time limit to submit tenders

 

 

Article 122

 

1.     In the tendering stage of the two-stage procedure, the time limit to submit tenders shall be determined by the contracting authority as a period not shorter than forty days from sending the invitation to tender.

 

2.     If minimum fifty-two days, but not more than twelve months prior to dispatching the notice containing the invitation to participate, the contracting authority had dispatched a notice containing preliminary summary information and if it had contained the data as per the notice template of the invitation to participate and available at the time of dispatching the notice containing such information, then deadlines shorter than stipulated in paragraph 1 may also be defined. In such cases the time limit to submit tenders shall be minimum twenty-six days from sending the invitation to tender.

 

3.     The time limit according to paragraph 1 of not less than forty days and according to paragraph 2 of twenty-six days to submit a tender may be shortened by not more than five days, provided the contracting authority made accessible the documentation, free-of-charge and fully, for tenderers directly by electronic means from the day when the invitation to tender was dispatched, and provides the access data in the invitation.

 

Invitation to tender

 

Article 123

 

1.     The contracting authority shall have the right to set the range of the number of tenderers by sending invitations to tender to a number of candidates falling within the upper limit of the range.

 

2.     The range must include minimum five tenderers. The range shall be adjusted to the subject of the public procurement and shall under all circumstances provide for genuine competition.

 

3.     If the contracting authority intends to set a range, it shall do so in the invitation to participate.

 

4.     If the contracting authority sets a range, it shall also define in the invitation to participate a prioritisation method in case the number of suitable candidates exceeds the range. Prioritisation can be determined in the area of certifying technical capability and professional qualification for delivery under the contract by the candidate.

 

5.     The contracting authority, according to the range of the number of tenderers set, shall invite the candidates selected on the basis of financial and economic, and technical as well as professional capabilities, simultaneously, directly and in writing to tender. When the number of candidates qualified as capable is less than the lower number in the range, the contracting authority may continue the procedure with inviting to tender the candidates that qualify as capable. If the contracting authority does not set a range, then it shall invite all the qualified candidates to tender. Candidates invited to tender shall not submit joint tenders.

 

Title 5/A

 

COMPETITIVE DIALOGUE

 

Application of the procedure, general provisions

 

123/A

 

1.     The contracting authority may make use of the competitive dialogue where

 

(a)   they are not able to define, or to define in the detail needed for using the open or the negotiated procedure, the technical specifications concerning the subject-matter of the public procurement,

 

(b)   they are not able to define, or to define in the detail needed for using the open or the negotiated procedure, the type of the contract, or the legal or the financial conditions thereof.

 

2.     The conditions specified in point (a) and (b) shall not be the consequence of any negligence on the part of the contracting authority.

 

3.     In the competitive dialogue the contract shall be awarded on the sole basis of the award criterion for the most economically advantageous tender.

 

4.     The dialogue between the contracting authority and one or more candidates in the competitive dialogue aims at defining in the detail needed for the contract award the technical specifications of the public procurement concerning the subject-matter of the public procurement, as well as the type of the contract or the legal or financial conditions thereof.

 

5.     During the dialogue the contracting authority shall ensure equality of treatment among all tenderers, and in particular the contracting authority shall provide to all tenderers any information they give to any tenderer.

 

Special rules for the participation stage of the

competitive dialogue

 

Article 123/B

 

1.     Besides the contents provided for in Article 101 (4), the invitation to participate shall contain:

 

(a)   the information concerning the availability of the descriptive document;

 

(b)   information according to Article 57 (3) with the option of presenting in detail the method (methods) pursuant to Article 57 (3) (d), in the documentation that shall be drawn up in the stage of tendering.

 

2.     The descriptive document shall contain, in particular, a definition, to the extent the contracting authority is capable of, concerning the subject-matter of the public procurement, the related technical specifications for the public procurement, as well as the terms of the contract.

 

3.     The contracting authority may indicate in the invitation to participate who they wish to invite to participate in the procedure. Besides those so indicated, all may request participation in the procedure on the basis of the invitation to participate, which are capable of fulfilling the contract. The contracting authority shall refer to this in the invitation to participate.

 

Special rules for the tendering stage of the

competitive dialogue  

 

Article 123/C

 

1.     In the tendering stage of the competitive dialogue candidates first draw up solutions, the contracting authority, during one or more stages as indicated in the invitation to tender, continues a dialogue with them about the solutions. The candidates subsequently shall submit their final tenders that shall be evaluated by the contracting authority according to Article 121 (8).

 

2.     The shortest time limit specified in this Chapter shall not apply in the tendering stage of the competitive dialogue, the time limit shall be determined in a manner that shall provide sufficient time for drawing up an appropriate tender, ensuring equal possibilities for all tenderers.

 

3.     Until the final tenders are submitted the binding period for the tender according to Articles 76 to 78 shall not be applicable either for the tenderer or for the contracting authority, as well as neither shall the binding period for the contracting authority concerning the tendering stage apply according to Article 108 (1), and Article 121 (6). Nevertheless, the subject-matter, as well as the characteristics for the conditions and for the circumstances of the contract awarded on the basis of the procedure shall not change either the subject-matter, or the contract criteria of the intended procurement as stated at the start of the public procurement [Article 35 (2)] to an extent that would not have permitted the application of the competitive dialogue.

 

4.     A tender guarantee may be specified for a failure of the contract award exclusively subject to a reason caused by the tenderer.

 

Article 123/D

 

1.     In addition to the provisions according to Article 120 (1), the invitation to tender shall specify

 

(a)   the time and the location of the first dialogue;

 

(b)   where the contracting authority shall conduct a competitive dialogue in several stages, the stages of the dialogue, and the upper limit of the number of candidates selected for the dialogue following the stage in question;

 

(c)   the language for the dialogue;

 

(d)   where the contracting authority specifies payment to one or more candidates, the relevant rules they set forth for this purpose.

 

2.     The documentation shall contain, particularly, the criteria not yet specified among the criteria provided by Article 123/A (1) for which the contracting authority is asking for solutions from the candidates, and with respect to such criteria what are the requirements or expectations of the contracting authority.

 

3.     In addition to the provisions in Article 121 (3) and (4) the proposed solution shall contain

 

(a)   the proposal, regarding one or more solution, of the tenderer concerning the conditions according to paragraph 4, as well as

 

(b)   the preliminary tender of the candidate regarding the fulfillment of the contract according to the technical, legal, or financial criteria proposed by that candidate, as well as

 

(c)   the statement regarding what part of which proposed solution is a business secret, as well as

 

(d)   the statement regarding what information from the proposed solution may be communicated to the other candidates during the dialogue,

 

(e)   the statement whether the candidate agrees to a joint dialogue with the other candidates, and to the use entirely, or a portion of the candidate’s proposed solution during the definition regarding the requirements for the subject-matter of the procurement.

 

4.     The candidate shall not prohibit the publication of their name, address (locality, residence), as well as of any fact, information, solution or data (in the following altogether: data) which shall be assessed according to the award criteria. A reference to a business secret shall not restrict nor prohibit the publication of data that is subject to the obligations of data provision and communication according to a separate act of legislation concerning data that are public in general interest and that are public data regarding general interest.

 

Article 123/E

 

1. The dialogue shall be conducted jointly with the candidates only if all candidates have so agreed.

 

2.     Dialogues may be conducted in one or in more stages. In the case of a dialogue with several stages the contracting authority may invite for successive stages only candidates that have submitted the most favourable proposal (variant of proposal) in the first, or in the successive stage for the solution specified in the invitation to participate on the basis of the conditions according to Article 57 (3). The number of candidates shall not be less than three even after the last stage of the discussion. The proposed solutions of candidates that have submitted varying solutions shall be compared on the basis of the conditions specified in the invitation with respect to Article 57 (3). Where a candidate submits a multi-variant proposal for solution, the individual variant proposals shall be considered as independent proposals, and the contracting authority is not bound to invite to a successive stage (stages) of the dialogue any specific solution proposed by a candidate.

 

3.     Where a solution proposed by a candidate does not contain a proposal concerning  Article 123/D (2), or where the method of the solution contained in such a proposal (or in a variant proposal) shall not be in compliance with the conditions defined by the contracting authority regarding the subject-matter of the public procurement, the relevant public procurement technical specifications, as well as the contract award requirements, or furthermore, with the frame and the expectations of the contracting authority concerning the elements that are the subject of the proposal, the contracting authority shall declare invalid the proposed solution or any variant of that solution, and shall proceed according to Article 93 (1).

 

4.     During a successive dialogue with the candidates selected according to paragraphs 2 and 3 the contracting authority shall not modify requirements, and the candidates shall submit proposed solutions that are identical or more favourable for the contracting authority, compared to the previous solution.

 

5.     The contracting authority for every dialogue shall draw up minutes that shall be signed by all candidates that participated in the stage in question not later than by the commencement of the subsequent stage of the dialogue (in the case of a single stage or the last stage not later than two days after the dialogue ended), and a copy of such minutes shall be handed over or dispatched to them within two working days.

 

Article 123/F

 

1. After the conclusion of the dialogues the contracting authority in writing and simultaneously shall ask all candidates (in the case of a one stage dialogue all suitable participants not subject to Article 123/E (3) who participated in the last stage to submit their final tender.

 

2.     Where all candidates in their proposed solution have agreed to a joint dialogue with the other candidates, and to the use entirely, or a portion of the candidate’s proposed solution during the definition regarding the requirements for the subject-matter of the procurement and the contracting authority considers this necessary, the contracting authority may use entirely, or a portion of one or more proposed solutions in defining the public procurement technical specifications and the requirements of the contract award.

 

3.     In cases pursuant to paragraph 2, subject to the extent of the changes to the public procurement technical specifications or to the contract-award requirements, the contracting authority may modify the assessment criteria factors or the weight of such defined in the invitation to tender; the justification of the modification shall be stated in the documentation provided to draw up the final tender.

 

4.     Where the requirements according to paragraph 2 do not exist, tenderers shall draw up their final tenders by finalizing the previous proposal for solution.

 

Article 123/G

 

1.     The final time limit for submitting a tender, the place of this submitting and the date for opening the tenders shall be announced in the invitation to submit a final tender.

 

2.     In the case according to Article 123/F (2), in addition to the provisions in paragraph 1, the announcement regarding submitting a final tender shall also contain data in connection with the availability of the documentation.

 

3.     Tenderer may submit a final offer, even if the contracting authority used a proposal to draw up the invitation to tender and the documentation that was not made by him.

 

4.     The final tender, in addition to  the provisions of Article 88 (1), shall be invalid where the method of solution with respect to Article 123/D (2) does not comply with the requirements that were defined by the contracting authority concerning the subject-matter of the public procurement, the relevant public procurement technical specification, as well as with the frame and the expectations of the contracting authority, defined regarding the contract award requirements or with the elements that are the subject of the proposal.

 

5.     The contracting authority, if justified, may hold the announcement of the award at a time that is earlier than that specified in the invitation and shall inform all tenderers simultaneously, directly, in writing about this and about the relevant reason, and if appropriate about the new earlier date for concluding the contract at least two days before the new date for the award announcement.

 

Title 6

 

Negotiated procedures

 

Application of the procedure

 

Article 124

 

1.     Negotiated procedures may be initiated with or without the publication of a tender notice.

 

2.     Contracting authorities may award their public procurements by negotiated procedure, with prior publication of a tender notice in the following cases:

 

(a)   if an open or a restricted procedure or the competitive dialogue has been unsuccessful pursuant to Article 92 (b) or (c), insofar as the original terms of the invitation, the documentation and the descriptive document are not substantially altered;

 

(b)   in exceptional cases, for supply of goods, for works, and for services when the nature of such or the relevant risks involved do not permit prior overall (all inclusive) pricing;

 

(c)   for public works, when the works involved are required purely for the purpose of research, experiment or development, and not to establish commercial viability or recover research and development costs;

 

(d)   for public services, when the nature of the services to be procured, in particular in the case of intellectual services and services falling within category 6 of Annex 3, is such that contract specifications cannot be established with sufficient precision to permit the award of the contract by selecting the best tender.

 

Article 125

 

1.     The contracting authority may award contracts by negotiated procedure without prior publication of a tender notice (in the following: “procedure without a tender notice”) in the cases specified in Article 124 (2) (a) if it invites to the negotiation all tenderers in the open, the restricted procedure, and in the competitive dialogue not subject to the provisions of Article 88 (1) (a)-(e).

 

2.     Contracting authorities may conduct a negotiated procedure without prior publication of a tender notice in the following cases:

 

(a)   if the open or restricted procedure was unsuccessful under Article 92 (a), or if the restricted or negotiated procedure with a tender notice was unsuccessful under Article 115 (a), provided that the original terms of the invitation to tender and the tender specifications are not altered substantially, and that a report to this effect is communicated without delay by the contracting authority, through the Public Procurement Council, to the European Commission,

 

(b)   when, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the services or products may be supplied only by a particular organisation or person;

 

(c)   insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseen by the contracting authorities in question, the time limit laid down for the open, restricted or negotiated procedures with the publication of a notice cannot be kept. However, the circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting authorities;

 

3.     Further, contracting authorities may award public works or public service contracts by negotiated procedure without a tender notice in the following cases:

 

(a)   for additional works or services not included in the contract first concluded but which have, through unforeseen circumstances, become necessary for the performance of the public works or service described therein, provided that such additional public works or services cannot be technically or economically separated from the main contract without great inconvenience to the contracting authorities, or, when such public works services, although separable from the performance of the original contract, are strictly necessary for its completion; on condition that the total estimated value of the contract(s) on such additional public works or service — awarded to the winner of the former award procedures — shall not exceed 50% of the value of the original public works or service;

 

(b)   for new public works or services consisting in the repetition or similar works or services entrusted to the party to which the same contracting authorities awarded an earlier contract, provided that such works or services conform to a basic project for which a first contract was awarded in an open or restricted procedure, and the contracting authority indicated in the tender notice for the original procedure that the negotiated procedure might be adopted and took into consideration the total estimated cost of subsequent works or services (to determine whether it reaches the Community threshold); such negotiated procedure may be applied solely during the three years following the conclusion of the original contract;

 

4.     In addition, contracting authorities may award public supply contracts by negotiated procedure without prior publication of a tender notice in the following cases:

 

(a)   when the products involved are manufactured purely for the purpose of research, experiment, study or development; however, this provision does not extend to quantity production to establish commercial viability or to recover research and development costs;

 

(b)   for additional deliveries by the winner of the original contract which are intended either as a partial replacement of normal supplies or as the extension of existing supplies where a change of supplier would oblige the contracting authority to acquire material having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; however, the total length of such contract(s) may not exceed three years;

 

(c)   when the product is listed on and procured from a commodity exchange;

 

(d)   when the goods are procured with exceptionally favourable terms in the course of a sale in a liquidation procedure, in a closing sale or in the execution of a court warrant, or in any similar procedure related to the personal rights of the entity concerned.

 

5.     In addition, contracting authorities may award public service contracts by negotiated procedure without prior publication of a tender notice, where the contract concerned follows a design contest and must, under the rules applying, be awarded to the successful candidate or to one of the successful (awarded) candidates; in the latter case, all candidates (tenderers) recommended by the tender assessment panel shall be invited to participate in the negotiations.

 

6.     Contracting authorities shall only award public service contracts by negotiated procedure without prior publication of a tender notice in the cases stipulated in paragraph 2 (a) and paragraph 4 (a), according to the rules applicable to such procedures.

 

Common rules of negotiated procedures

 

Article 126

 

The rules of the open procedures and in the case of negotiated procedures with prior publication of a tender notice, also the rules pertaining to two-state procedures shall be applied to the negotiated procedures mutatis mutandis, with the differences stipulated in Title 6.

 

Article 127

 

1.     The shortest time limits set forth in this Chapter in respect to the receipt of tenders shall not apply to negotiated procedures, however, the time limit set to submit tenders shall always be set allowing sufficient time for tenderers to prepare – with equal opportunities – appropriate tenders.

 

2.     In negotiated procedures the commitment period stipulated in Articles 76–78 in respect to tenderers and contracting authorities, while in the case of negotiated procedures with prior publication of a tender notice, the commitment of the contracting authorities specified in Articles 108 (1) and Article 121 (6) for the tendering stage shall not apply. This, however, shall not result in a divergence in the properties or conditions of the subject or the terms and conditions of the contract awarded in the procedure from the original subject intended to be purchased or the terms and conditions of the contract laid down at the commencement of the award procedure [Article 35 (2)] to the extent which would have not allowed the adoption of a negotiated procedure. The conclusion of the negotiations results in a commitment. When the contracting authority has announced the results of the procedure, the contract shall be concluded in compliance with the stipulations of the invitation, the tender specifications and the contents of the tender at the time of the conclusion of the negotiations.

 

3.     Tender bond may only be required in case of a failure to conclude the contract attributable to the tenderer.

 

4.     In justified cases the contracting authority may announce the results earlier than the date set in the invitation. The success or failure of the procedure – in the event of common negotiations with several tenderers or negotiations with a single tenderer – may be announced as early as the conclusion of the last negotiation, and, in appropriate cases, the new, earlier date of concluding the contract may also be set. In other respect, the contracting authority shall advise of the new date, the reason therefore, and – if applicable – the earlier date of concluding the contract all tenderers simultaneously, directly and in writing at least two business days prior to the new date of announcement of the results.

 

Article 128

 

1.     The objective of negotiations between the contracting authority and one or more tenderers in negotiated procedures is to award the contract to the tenderer offering the most favourable admissible terms and subject to the most advantageous terms and conditions.

 

2.     In the course of the negotiations, the contracting authority shall ensure equal treatment of the tenderers, thus in particular, all information provided by the contracting authority shall be communicated to all tenderers.

 

3.     Negotiations with the tenderers may be conducted jointly or subsequently, in one or more rounds.

 

4.     In the event of multi-round negotiations, the contracting authority shall have the right to continue negotiations only with tenderers having submitted the most favourable tender in the first or in the specified round. In this case, the contracting authority shall stipulate in the invitation to tender the process of the multi-round negotiation and the upper limit of the number of tenderers to be selected for the subsequent rounds. In the course of the negotiations conducted with the tenderers selected in the above manner the contracting authority shall not modify its terms and conditions even according to Article 127 (2), and the tenderers shall only submit tenders which are more advantageous to the contracting authority compared to the tenders submitted in earlier rounds.

 

5.     The contracting authority shall draw up minutes for every negotiation that shall be signed by all tenderers that participated in the stage in question not later than by the commencement of the subsequent stage of the negotiation (in the case of a single stage or the last stage not later than two days after the negotiations ended), and a copy of such minutes shall be handed over or dispatched to them within two working days.

 

Special rules of negotiated procedures with prior publication of a tender notice

 

Article 129

 

In addition to the details set forth in Article 120 (1), the invitation to tender for negotiated procedures with prior publication of a tender notice shall state the following:

 

(a)   the procedure and fundamental rules of the negotiations set by the contracting authority;

 

(b)   the date of the first negotiation.

 

Article 130

 

1.     In the case of negotiated procedures with prior publication of a tender notice, the contracting authority may set the number or range of tenderers, provided that it sends an invitation to tender to candidates at least equalling the number or range set.

 

2.     The range must number at least three tenderers. The range of candidates invited to tender shall be determined in the light of the nature of the subject of the contract and shall, in any event, be sufficient to ensure genuine competition.

 

3.     If the contracting authority prescribes the number or range of participants, it shall be indicated in the invitation to participate.

 

4.     In the invitation to participate the contracting authority may identify the parties it intends to invite. In addition to those identified, any party may seek an invitation to take part in the procedure in response to the invitation to participate, which are suitable for the performance of the contract. The contracting authority shall state this possibility in the invitation to participate.

 

5.     If the contracting authority applies the provisions set forth in paragraphs 1 and 4 jointly, it shall be obliged to prescribe a number or range exceeding the number of those identified.

 

6.     If the contracting authority prescribes a number or range, it shall also state in the invitation to participate the method of ranking suitable candidates to be applied if the number of suitable candidates exceeds the number or range prescribed.  For ranking, the technical capacity and the professional qualification of the candidate to perform under the contract shall be taken into account.

 

7.     The contracting authority shall send an invitation to tender to all the candidates selected – based on their financial and economic standing, technical capacity and the professional qualification – directly, simultaneously, and in writing, provided that this is allowed by the number of candidates deemed suitable. If the contracting authority did not prescribe the number or range of participants, it shall send an invitation to tender to all suitable candidates. Candidates invited to tender shall not submit joint tenders.

 

8.[47]  Exclusively in the case of Article 124 (2) (a) may the contracting authority start an electronic auction, provided they have referred to this previously in the invitation to participate. The detailed rules for the electronic auction shall be the subject of a separate act of legislation.

 

Special rules of negotiated procedures without a tender notice

 

Article 131

 

1.     With the exception of the case specified in Article 135, negotiated procedures without a tender notice shall commence by sending an invitation to tender.

 

2.     If several tenderers may submit a tender, the invitation to tender shall be sent simultaneously to all tenderers.

 

3.     If Article 125 (2) (a) and (4) (a) applies to the negotiated procedure, the contracting authority shall, if practicable, send an invitation to tender to at least three tenderers.

 

Article 132

 

On the commencement date of a negotiated procedure without a tender notice, the contracting authority shall send – by fax, electronic media or directly – the invitation to tender, as well as a report on the name and address (seat, residence) of the entities (persons) to be invited to tender and the circumstances which justify the use of negotiated procedures to the (chairperson of the) Arbitration Committee of Public Procurements.

 

Article 133

 

1.     The invitation to tender shall contain at least the following:

 

(a)   name, address, telephone number and fax number (e-mail) of the contracting authority;

 

(b)   the ground to adopt the negotiated procedure under Article 125;

 

(c)   the method, the final date and the place for collecting the tender specifications as well as the terms of payment of any sum to be paid for such documents, if the contracting authority has drawn up such documents but did not send them concurrently with the invitation to tender;

 

(d)   the subject and quantity of the contract (nomenclature);

 

(e)   specification of the contract to be awarded through the negotiations;

 

(f)    the term of the contract or the time limit for delivery;

 

(g)   place of delivery;

 

(h)   conditions for settling the price and reference to the applicable laws;

 

(i)    acceptance or prohibition of variant (alternative) offers;

 

(j)    evaluation criteria (Article 57);

 

(k)   grounds for exclusion;

 

(l)    suitability criteria and the stipulations in Article 69 (2);

 

(m)  whether the correction of deficiencies is permitted or not;

 

(n)   time limit to submit tenders;

 

(o)   address to which they must be sent;

 

(p)   language(s) in which they must be drawn up;

 

(q)   venue and date of tender opening;

 

(r)    identification of parties entitled to attend the tender opening;

 

(s)    the process of negotiations and the related fundamental rules prescribed by the contracting authority;

 

(t)    the date of the first negotiation;

 

(u)   the date of announcing the results and the planned date for the conclusion of the contract;

 

(v)   the date of sending the invitation to tender.

 

2.     The tender notice referred to in Article 50 (3), Article 51 (3), Article 52, Article 53 (2) and (4)-(6), Article 54 (6) (a) and (c), Article 56 (1) and (4), Article 57 (5), Article 58 (1), Article 59, Article 60 (5)[48], Article 61 (1)–(2), Article 62 (2), Article 65 (2), Article 69 (5), Article 70, Article 71 (1) and (4)–(5), Article 79 (3), and in Articles 81, 83, 85, 88 to 91, 94 and 99 in respect of open procedures (Title 3) shall mean an invitation to tender.

 

3.     The invitation to tender may also contain the requirements and conditions that may be stated in the tender specifications according to the rules of open procedures [Article 51 (3), Article 57 (5), Article 58 (1), Article 79 (3)].

 

Article 134

 

1.     Article 48 (2)–(3) shall apply with the difference that the publication of the tender notice shall mean the commencement of negotiated procedures [Articles 35 (2) and Article 131 (1)].

 

2.     The contracting authority may draw up tender specifications. The contracting authority shall ensure that the tender specifications remain available from the commencement date of the negotiated procedures up to the time limit to submit tenders. In the absence of tender specifications, the terms of the contract and the information set forth in Article 55 shall be provided in the invitation to tender.

 

3.     In a reasonable time before the expiry of the time limit to submit tenders, the tenderer may request additional (interpretative) information from the contracting authority or the authority designated thereby.  The additional information must be sent to the tenderer no later than two business days prior to the expiry of the time limit to submit tenders.

 

4.     In justified cases, the contracting authority may extend the time limit to submit tenders indicated in the invitation to tender on one occasion, provided that the modification of the time limit, together with the reason therefore, is communicated directly, simultaneously and in writing, to all tenderers prior to the expiry of the original deadline.

 

5.     The contracting authority shall have the right to revoke the invitation to tender until the expiry of the time limit to submit tenders. This shall be communicated directly, simultaneously and in writing, to all tenderers and the Arbitration Committee of Public Procurements prior to the expiry of the original deadline.

 

6.     In the case of a negotiated procedure without a tender notice as defined in Article 125 (5) the only assessment criterion applied to the tenders shall be the that of selection of the most advantageous tender [Article 57 (2) (b)].

 

7.[49]  Exclusively in the case of Article 125 (2) may the contracting authority start an electronic downwards revision of prices, provided they have referred to this previously in the invitation to participate. The detailed rules for the electronic downward revision of prices shall be the subject of a separate act of legislation.

 

Article 135

 

1.[50]  In negotiated procedures without a tender notice under Article 125 (2) (c), negotiations shall be conducted and, contrary to the provisions set out in Article 99 (2), a written contract concluded with, the tenderer able to perform the contract within the period of time required by the extraordinary circumstances. In such cases, the tenderer shall declare that the grounds of exclusion do not apply to it, furthermore, it shall attach the official certifications related to the absence of public debts specified in Article 60 (1) (e) and Article 61 (2), and the authority certificates according to Article 60 (1) (h) no later than within thirty days following the conclusion of the contract. The existence of the condition in point (g) of Article 60 (1), in cases pertaining to the scope of Act LXXV of 1996 on labour health and safety control, shall be controlled by the contracting authority according to the data published by the labour safety authority[51].

 

2.     The Arbitration Committee of Public Procurements shall be immediately notified – by fax or electronic media – of the commencement of the procedure. Information shall be provided by applying, mutatis mutandis, the provisions set forth in Article 132 and Article 133 (1).

 

Title 7

 

Accelerated procedures

 

Article 136

 

1.     In the case of restricted procedures or negotiated procedures with prior publication of a tender notice, the contracting authority may apply an accelerated procedure if the time limits [Article 107 (1), Article 122] laid down for such procedures could not be otherwise kept. The contracting authority shall describe in the notice starting the procedure the reasons for applying an accelerated procedure.

 

2.     In accelerated procedures the contracting authority shall not set a time limit to submit application to participate that is shorter than fifteen days counted from the dispatch of the notice containing the invitation to participate, or that is shorter than ten days where the notice containing the invitation to participate is dispatched by electronic means, in a manner defined by a separate act of legislation. In accelerated procedures the contracting authority shall not set a time limit to submit a tender in a restricted procedure that is shorter than ten days, counted from the day the invitation to tender is dispatched.

 

3.[52]  In accelerated procedures the candidates for participation shall issue a declaration that they are not subject to reasons for exclusion, and shall send not later than fifteen days counted from the announcement of the award according to Article 117 (1),  the authority certificates pursuant to Article 60 (1) (e), and Article 61 (2) regarding a lack of public outstanding debt, and the authority certificates pursuant to Article 60 (1) (h). The existence of the condition in point (g) of Article 60 (1), in cases pertaining to the scope of Act LXXV of 1996 on labour health and safety control, shall be controlled by the contracting authority according to the data published by the labour safety authority[53].

 

4.     In accelerated procedures, the invitation to tender shall be dispatched to the tenderers as rapidly as possible and by the most appropriate channels.

 

5.     The contracting authority shall ensure that the tender specifications remain available from the date the invitation to tender is sent up to the time limit to submit tenders. Provided they have been requested in reasonable time, the tender specifications must be sent to the tenderers by the contracting authorities or its designated organisation within two business days of receiving their request.

 

6.     In reasonable time before the expiry of the time limit to submit tenders, the tenderer may request additional (interpretative) information from the contracting authority or the organisation designated thereby. The additional information must be sent to the tenderer no later than four days prior to the expiry of the time limit to submit tenders.

 

Title 7/A

 

FRAMEWORK AGREEMENT PROCEDURE

 

Two phases of the procedure

 

Article 136/A

 

1.     The framework agreement procedure is made up of two phases. During the first phase the contracting authority (contracting authorities) shall apply, in accordance with the provisions of this Chapter, an open or a restricted procedure to award a framework agreement. The contracting authority may apply also a negotiated procedure to award a framework agreement, where the requirements according to Article 124 and Article 125 exist for the application of the negotiated procedure. During the second phase the contracting authority asks for tenders for the subject-matter specified in the framework agreement and awards a contract for the implementation of the public procurement(s) in question.

 

2.     A framework agreement may be concluded with one, or with more than one tenderer. In the latter case the number of tenderers that are parties to the framework agreement shall not be less than three, and where the contracting authority applies Article 136/B (3) (a), at the end of the first phase they shall set up an order of preference for the tenderers on the basis of the award criteria used during the first phase.

 

3.     In the case a framework agreement is concluded with several tenderers, in the notice that starts the first phase of the framework agreement procedure the contracting authority shall state the limit of the highest and lowest number of the tenderers that have submitted a most advantageous tender according to one of the award criteria set according to Article 57 (2), and the contract authority shall conclude a framework agreement with not more that the highest limit number of such tenderers. The framework number shall be adjusted to the subject-matter of the public procurement and to the specific characteristics of the procedure, and under all circumstances shall ensure genuine competition. Article 90 (2)-(4) shall not apply to the assessment of identical tenders. Where several tenders are identical regarding the limit of the highest number of tenderers that have submitted most advantageous tenders, the contracting authority shall conclude a framework agreement with all such tenderers that have submitted identical tenders.

 

4.     Where a framework agreement is concluded with several tenderers the first phase of the framework agreement procedure, in addition to the provisions of Article 92, shall be unsuccessful when the number of tenderers that submitted a valid tender is less than three. When the contracting authority provides an opportunity to tender for a part of the public procurement and the number of tenderers successfully tendering for that part is less than three, the procedure is unsuccessful considering the relevant part of the public procurement.

 

5.     The framework agreement shall contain the substantial conditions for the contracts concluded within the relevant period of time, in particular the subject-matter of and the consideration for the public procurement. The quantity of the public procurement shall be defined according to Article 50 (2) in the framework agreement. The framework agreement may cover several public procurement subjects.

 

6.     The term of a framework agreement may not exceed four years. The term of the contract(s) concluded on the basis of the framework agreement may not exceed the term of the framework agreement.

 

7.     With the exception of the Annex according to Article 73 (1), provided that these provisions are not contrary to Article 96 (3), the framework agreement is public, the contents thereto shall be considered as data of public interest.

 

8.     Article 98 (1)-(3) shall be applied appropriately in the first phase of the framework agreement procedure.

 

9.     The framework agreement procedure shall not be used with the aim to restrict competition.

 

Article 136/B

 

1.     Subsequent to the first phase of the framework agreement procedure the contracting authority may conclude during the second phase of the procedure, several contracts within the limits of the quantities specified in the framework contract, as well as for some of the relevant subjects of procurement (in the following: “relevant public procurement”).

 

2.     Where a framework contract is concluded with one tenderer according to Article 136/A, the contracting authority, with the aim to implement the public procurement in question, may conclude a contract with the tenderer party to the framework agreement, subsequent to a written consultation.

 

3.     Where a framework agreement is concluded with several tenderers according to Article 136/A, the contracting authority, with the aim to implement the public procurement in question

 

(a)   may conclude a contract(s) by application of the terms laid down in the framework agreement without reopening competition, subsequent to a consultation in writing, on the basis of the award criterion applied in the first phase concerning the relevant part of the public procurement, with the tenderer ranked in the first place, or where the tenderer ranked in the first place is unable to fulfill the contract with tenderer that submitted the next most favourable tender, announced in the first phase of the contract award, provided the framework agreement contains all terms of the contract aimed at implementing the public procurement in question;

 

(b)   may dispatch directly in writing an invitation to tender to all tenderers that are parties to the framework agreement, where the framework agreement does not contain all terms of the contract aimed at implementing the public procurement in question.

 

Article 136/C

 

1.     Where the framework agreement was concluded with only one tenderer according to Article 136/B (2), or the contracting authority applies Article 136/B (3) (a), the invitation to participate in consultation shall contain at least the following:

 

(a)   the name and address, the phone and fax number (e-mail address) of tenderer;

 

(b)   reference to the notice that started the first phase of the framework agreement procedure, and the day of its publication;

 

(c)   reference to the concluded framework agreement;

 

(d)   the subject-matter, as well as the quantity of the public procurement in question;

 

(e)   a definition of the contract;

 

(f)    the term of the contract or the time limit for implementation;

 

(g)   the location of fulfillment;

 

(h)   the terms of payment, as well as reference to the relevant law;

 

(i)    the time limit to submit a tender, the language of the tender and the address to submit the tender;

 

(j)    the location and the time of the opening of the tender, who may be present at this;

 

(k)   additional rules for conducting the consultation;

 

(l)    the date for announcing the award, and the planned date for the conclusion of the contract;

 

(m)  the date for the dispatch of the invitation to consult.

 

2.     The shortest time for submitting a tender as laid down in this Chapter shall not apply in the second phase of the framework agreement procedure, nevertheless a time limit shall be fixed which is sufficient to allow tenderers to submit appropriate tenders under equal opportunities.

 

3.     If appropriate, the contracting authority may invite tenderers in the invitation to consult to supplement their tender submitted during the first phase of the framework agreement procedure.

 

4.     In the invitation to consult, in the tender, and during the consultation there shall be no substantial amendments to the terms laid down in the framework agreement.  Tenderer shall submit a tender identical to the terms set out in the framework agreement or a tender that is more favourable for the contracting authority, regarding the factors concerning  the constituent elements of the framework agreement according to Article 57 (3) (a).

 

5.     The contracting authority shall publish by means of a notice, pursuant to a template specified in a separate act of legislation, information on the success or unsuccessfulness of the second phase(es) of the procedure. This notice may be published together with the notice on the contracts concluded with the aim to implement public procurement contained in the framework agreement. In this latter case the notice shall be dispatched not more than five working days after the end of the quartile of the calendar year concerning the contracts concluded on the basis of the framework agreement during the preceding quartile of the year. A notice shall not be published regarding the first, not complete quartile of the year following the conclusion of the framework agreement.

 

Article 136/D

 

1.     According to Article 136/A (3) (b) the invitation to tender shall be sent simultaneously in writing to all tenderers that concluded a framework agreement. No other tenderer shall be involved in the procedure.

 

2.     In addition to the provisions in Article 136/C (1) the invitation to tender shall include, at least, the following:

 

(a)   the method of receiving, the location and the financial conditions of the receipt of the documentation where the contracting authority draws up documentation and has not sent such simultaneously with the invitation to tender;

 

(b)   the contract award criteria and if the most economically advantageous tender is chosen the provisions in Article 57 (3);

 

(c)   the possibility for providing missing information, or the exclusion of such possibility.

 

3.     The contracting authority may apply contract award criteria that differ from the criteria used in the first phase of the procedure where in the first phase they have specified thereto in the invitation to tender that started the procedure or in the documentation which is a part of the framework agreement. Where the contract award criteria is the selection of the most economically advantageous tender, the provisions according to Article 57 (3)-(4) shall be part of the invitation starting the procedure, of the documentation, and of the framework agreement.

 

4.     The contracting authority shall fix a time limit for submitting tenders to allow sufficient time for submitting appropriate tenders.

 

5.     Tenders shall be submitted in writing, 136/C (3)-(4) shall also be applicable for the procedure.

 

6.[54] After the evaluation of the tenders according to Article 81 (4) the contracting authority may start an electronic downward revision of prices, where this has been indicated previously in the invitation to tender. The detailed rules for the electronic downward revision of prices shall be the subject of a separate act of legislation.

 

 

 

Other rules applicable

 

Article 136/E

 

1.     The contracting authority is not obliged to dispatch an invitation to consult or an invitation to tender where, after the framework agreement is concluded, owing to a substantial circumstance they could neither foresee nor overcome, it shall not be possible for them to conclude the contract (contracts), or when the contract is concluded, to implement them. In this case the contracting authority shall inform without any delay in writing the tenderers party to the framework agreement and the Public Procurement Council.

 

2.     In order to implement the public procurement the contracting authority may use another procedure with the prior publication of notice, than that provided in this Chapter, particularly when the framework agreement has been concluded for a term of several years, as well as when the number of tenderers that concluded the framework agreement does not allow genuine competition. In this case the contracting authority, in a new notice, shall refer to this circumstance and shall inform in writing, without any delay after the publication of this new notice the tenderers that concluded the framework agreement simultaneously.

 

Title 8

 

Special rules pertaining to public works concession

 

Procedure of the contracting authority in the event of public works concessions

 

Article 137

 

In respect of public works concession, the rules set forth in Chapter IV shall apply with the deviations provided for in this Title 8.

 

Article 138

 

1.           

 

2.     The tender notice on launching the procedure shall be drawn up by the contracting authority according to the template provided for in the relevant legislation and published.

 

3.     The contracting authority shall prepare a notice on the success or the failure of the procedure in compliance with a template presented in the relevant legislation and publish this notice in the Public Procurement Bulletin. The notice may also be published in accordance with Article 44 (1).

 

Article 139

 

1.     In the tender notice that starts the procedure the contracting authority shall indicate the type of award procedure to be followed. In respect of the preparation of the notice the rules pertaining to tender notice or to invitation to participate shall be applied accordingly. An accelerated procedure shall not be applied.

 

2.     Negotiated procedure with the prior publication of a tender notice can also be adopted in cases not covered by Article 124 (2). The contracting authority may only adopt a negotiated procedure without a notice in compliance with the provisions set forth in Article 125 (1), (2) (a), (b) or (3) (a).

 

Article 140

 

1.     In the tender notice, the contracting authority shall be entitled to:

 

(a)   either require the tenderer winning the public works concession (hereinafter referred to as ‘concessionnaire’) to award contracts representing a minimum of thirty percent of the total value of the work for which the concession contract is to be awarded, to third parties,

 

(b)   or request the tenderer to specify in their tenders the percentage of the total value of the work for which the concession contract is to be awarded which they intend to assign to third parties.

 

2.     Tenderers may increase the percentage specified in paragraph 1 (a) in their tender.  Based on the tender submitted by the concessionnaire, this minimum percentage shall be specified in the concession contract.

 

3.     For the purposes of paragraph 1 and Articles 143 and 144, the following shall not be regarded as third parties:

 

(a)   undertakings having submitted a joint tender;

 

(b)   undertakings over which the tenderer may exercise, directly or indirectly, a dominant influence, or which may exercise, directly or indirectly, a dominant influence over the tenderer or the tenderer and another organisation.

 

4.     A list of the organisations referred to in paragraph 3 (b) shall be indicated in the tender and this list shall be brought up to date following any subsequent changes.

 

5.     The contracting authority shall not stipulate in the tender notice launching the procedure that tenderers must name the subcontractors intended to be employed for more than 10% of the contract value.

 

Article 141

 

In respect of public works concessions,

 

(a)   the evaluation criterion may be only the selection of the best-value-for-money tender [Article 57 (2) (b)];

 

(b)   in open procedures the time limit for receipt of tenders, while in restricted procedures and negotiated procedures with a prior publication of a tender notice the requests to participate, may be not less than fifty-two days from the date of dispatch of the tender notice, furthermore, neither Article 74 (2) nor Article 122 (2) may be applied. The time limit fixed for receipt of tenders (in an open procedure) or for receipt of requests for participation may be shortened by seven days where the contracting authority dispatched for publication the notice starting the procedure by electronic means, according to a separate act of legislation.

 

Article 142

 

If the public works concession also fall under the scope of Act XVI of 1991 (hereinafter referred to as ‘Act on concessions’) instead of inviting a concession tender, the contracting authority shall proceed in compliance with Article 137 and shall also appropriately apply the provisions of Act on concessions — with the exception of Article 2 (1) (a), Article 4, Article 8 (1) and Article 9.  In respect of the preparation of the written summary pursuant to Article 93 (2) herein Article 9/A of the Act on concessions shall also be appropriately applied.

 

Article 142/A

 

1.     When additional construction works is necessary for the fulfillment of the works specified in the contract concluded earlier, the contracting authority may conclude with the concessionaire a relevant contract without conducting a new public procurement procedure, provided

 

(a)   the additional construction works, owing to technical or economic reasons, cannot be separated from the earlier contract without causing substantial difficulties for the contracting authority, or

 

(b)   the additional construction works may be separated, but these are indispensable for the fulfillment of the works in question.

 

2.     The aggregated value of the contract or contracts concluded with the earlier concessionaire, forecast for the additional construction works according to paragraph 1 shall not exceed one half of the value of the original works.

 

Procedure to be followed by the concessionnaire in the event of contracts with third parties

 

Article 143

 

If the value of the public works reaches or exceeds the Community threshold, concessionnaires qualifying as a public authority pursuant to Article 22 (1), shall proceed in compliance with the provisions of this Chapter when concluding a public works contract with a third party.

 

Article 144

 

1.     If the value of the public works reaches or exceeds the Community threshold, concessionnaires not qualifying as a public authority pursuant to Article 22 (1) shall proceed in compliance with this Chapter – subject to the differences set forth in paragraphs 2 to 7 below – when concluding a public works contract with a third party.

 

2.

 

3.     The concessionnaire shall draw up the tender notice on launching the procedure according to the template provided for in the relevant legislation and publish it, unless a negotiated procedure without a tender notice according to Article 125 is adopted.

 

4.     The concessionnaire shall prepare a notice on the success or the failure of the procedure in compliance with a template provided in the relevant legislation and publish this notice in the Public Procurement Bulletin. The notice may also be published in accordance with Article 44 (1).

 

5.     In the tender notice on launching the procedure the concessionaire shall specify the type of procedure adopted. The notice shall be drawn up accordingly, pursuant to the regulations pertaining to the tender notice or invitation to participate.

 

6.     A negotiated procedure with a tender notice may also be adopted in cases not falling within the scope of Article 124 (2). A negotiated procedure without a tender notice can be adapted according to Article 125.

 

7.     With the exception of negotiated procedures, the time limit for the receipt of tenders shall not be fixed at less than forty days counted from the date of the dispatch of the tender notice, or of the invitation to tender. The time limit (in open procedures) that is not less than forty days for submitting as tender, and thirty-seven days for submitting a request for participation may be shortened by not more than seven days, provided  the contracting authority dispatched the notice for the invitation to participate using electronic means, in a manner specified by a separate act of legislation. Article 74 (4) and Article 122 (3) shall apply. Article 74 (2), Article 122 (2), and Article 136 (2) shall not apply.

 

Title 9

 

Simplified procedure

 

Article 145

 

1.     When contracting for services specified in Annex 4 (Article 21 (3)) the contracting authority may adopt the simplified procedure set forth in Articles 146–152 below.

 

2.     In case of legal services defined in Article 153 the contracting authority may also proceed as set out therein.

 

Article 146

 

Simplified procedures are single-stage negotiated or non–negotiated procedures.  In the event of non-negotiated procedures, the contracting authority shall be bound by the conditions set forth in the invitation to tender and the tender specifications, while tenderers shall be bound by their tenders.

 

Article 147

 

1.     In simplified procedures, the tender notice on launching the procedure shall be drawn up by the contracting authority according to the template provided for in the relevant legislation and published in the Public Procurement Bulletin, unless provided otherwise in paragraphs 2 and 5[55].

 

2.     The contracting authority may also send invitations to tender in writing for the tenderer(s),

 

(a)   if the procedure launched according to paragraph 1 was unsuccessful;

 

(b)   when, for technical or artistic reasons or for reasons connected with the protection of exclusive rights, the works may only be carried out by a particular organisation or person;

 

(c)   for additional services not included in the contract first concluded but which have, through unforeseen circumstances, become necessary for the performance of the public service described therein, provided that such additional public services cannot be technically or economically separated from the main contract without great inconvenience to the contracting authorities, or, when such public services, although separable from the performance of the original contract, are strictly necessary for its completion; on condition that the total estimated value of the contract(s) on such additional public works or service – awarded to the winner of the former award procedures – shall not exceed 50% of the value of the original public service;

 

(d)   for new public services consisting in identical or similar services entrusted to the party to which the same contracting authorities awarded an earlier contract, provided that the new services conform to a basic project for which a first contract was awarded in the procedure specified in paragraph 1, and the contracting authority indicated in the tender notice for the original procedure that the procedure specified in paragraph 2 might be adopted and took into consideration the total estimated cost of subsequent services (to determine whether it reaches the Community threshold); however, such procedure may be applied solely during the three years following the conclusion of the original contract.

 

(e)   the terms that have been made public for providing the service that may be used by all, and that are exceptionally favourable exist only for a short time, and compared to market prices the consideration is much lower, and that the use of such favourable terms would not be possible when paragraph 1 is applied.

 

3.     If the case set forth in paragraph 2 (a) applies, the contracting authority shall send invitations to tender to at least three tenderers if possible. In such a case, the invitations to tender shall be sent simultaneously.

 

4.     In the case set forth in paragraph 2 (e) the contracting authority shall send without any delay after having gained information about the favourable terms, an invitation to tender by fax or by electronic means to the tenderer that offered such favourable terms and to at least two other tenderers known, if possible. The contracting authority shall keep the document containing the favourable terms offered according to Article 7 (2).

 

5.     Insofar as is strictly necessary, for reasons of extreme urgency brought about by events unforeseen by the contracting authorities in question, the time limit laid down for the procedure specified in paragraph 1 cannot be kept, the contracting authority shall hold negotiations and, contrary to the provisions set forth in Article 99 (2), execute a written contract upon the conclusion of such negotiations, with the tenderer that is able to perform the within the time limit required by the extraordinary circumstances. However, the circumstances invoked to justify extreme urgency must not in any event be attributable to the contracting authorities.

 

Article 148

 

1.     On the commencement date of the procedure under Article 147 (2), the invitation to tender, as well as a report on the name and address (seat, residence) of the organisations (persons) to be invited to tender and the circumstances which justify the use of negotiated procedures shall be submitted – by fax or electronic media as well, or directly – to the Arbitration Committee of Public Procurements.

 

2.     The Arbitration Committee of Public Procurements shall be informed of the commencement of the procedure specified in Article 147 (5)[56] without delay by fax or electronic media. The information shall be submitted by the appropriate application of the provisions in paragraph 1 above and Article 150.

 

Article 149

 

1.     In the tender notice or invitation to tender, respectively, the contracting authority shall indicate whether the procedure includes negotiations or it intends to assess the submitted tenders without holding negotiations.

 

2.     In the tender notice the contracting authority may identify the parties it intends to invite to tender. In addition to those identified, any parties may submit a tender in response to the invitation to tender, which are suitable for the performance of the contract.  The contracting authority shall state this possibility in the tender notice.

 

Article 150

 

The invitation to tender shall contain at least the following:

 

(a)   name, address, telephone number and fax number (e-mail) of the contracting authority;

 

(b)

 

(c)   the method, the final date and the place for collecting the tender specifications as well as the terms of payment of any sum to be paid for such documents, if the contracting authority has drawn up such documents but did not send them concurrently with the invitation to tender;

 

(d)   the subject and quantity of the contract (nomenclature);

 

(e)   specification of the contract;

 

(f)    the term of the contract or the time limit for performance;

 

(g)   place of performance;

 

(h)   conditions for settling the price and reference to the applicable laws;

 

(i)    whether variant offers are permitted or not;

 

(j)    the evaluation criteria (Article 57);

 

(k)   grounds for exclusion, if several tenderers may submit a tender;

 

(l)    suitability criteria and the stipulations in Article 69 (2);

 

(m)  whether the correction of deficiencies is allowed or prohibited;

 

(n)   time limit to submit tenders;

 

(o)   address to which they must be sent;

 

(p)   language(s) in which they must be drawn up;

 

(q)   venue and date of tender opening;

 

(r)    identification of parties entitled to attend the tender opening;

 

(s)    the process of negotiations and the related fundamental rules prescribed by the contracting authority, as well as the date of the first negotiation, unless a non-negotiated procedure is adopted;

 

(t)    the date of announcing the results and the planned date of concluding the contract;

 

(u)   the date of sending the invitation to tender.

 

Article 151

 

1.     If the contracting authority chooses to draw up tender specifications, it shall ensure that such documents remain available from the publication of the tender notice or from sending  the invitation to tender, up to the time limit to submit tenders, and shall also apply the provisions of Article 54 (2) and (4)–(6) as appropriate.

 

2.     In order to submit a suitable tender, the tenderer may request in writing (or by electronic media) from the contracting authority or the authority designated thereby additional (interpretative) information concerning the tender notice or the invitation to tender, respectively, and the tender specifications in reasonable time prior to the expiry of the time limit to submit tenders. The additional information must be supplied to the tenderer not later than two working days prior to the expiry of the time limit to submit tenders. In addition, the provisions of Article 56 (3)–(4) shall be applied as appropriate.

 

3.     In respect of the exclusion criteria, the provisions set forth in Articles 60–63 and 71 (3) shall be applied as appropriate, provided, however, that in the cases specified in Article 63 (2) (c) and (d) a simple statement may also be accepted.

 

4.     With regard to the suitability of the tenderer and its subcontractor intended to be employed for the performance of more than 10% of the contract, the provisions stipulated in Articles 65–66, 67 (3), 68–69 and 71 (4) shall apply as appropriate, provided that the contracting authority may prescribe other objectively defined suitability criteria and methods of certification, nevertheless, the provisions of Article 69 (3) shall be applied as appropriate.

 

5.     In respect of the extension of the time limit fixed for receiving the tenders in the tender notice, and revoking the tender notice, the provisions of Article 75 (1) and Article 76 (2), while in respect of the extension of the time limit specified to submit tenders specified in the tender invitation, and revoking the tender invitation the provisions of Article 134 (4)–(5) shall be applied as appropriate.

 

6.     In the event of non-negotiated procedures, the provisions of Articles 76 (1) and 77–78 shall be applied as appropriate to the validity of the tenders, provided that if the procedure was launched through a tender notice, instead of the publication of a notice, all tenderer shall be advised in writing directly and simultaneously.

 

7.     Upon completing the evaluation of the tenders, the contracting authority shall prepare a written summary of the tenders following the template provided for in the relevant legislation. Upon request, the summary shall be forwarded to the Council for Public Procurement.

 

8.     The sending and publication of the notice regarding the success or the failure of the procedure shall be governed by the provisions of Article 98. In the notice referred to in Article 98 (3) the contracting authority shall state whether it agrees to the publication of the notice; in the absence of this agreement the notice shall not be published.

 

9.     In the course of a simplified procedure, the provisions stipulated in Article 48 (2)–(3), Article 49–53, Article 57 (1)–(5), Article 58, Article 59, Article 70, Article 73, Article 74 (6), Article 75 (2), Articles 79–89, Article 90 (2)- (4)[57], Articles 91–92, Article 93 (1), Article 94–97 and Article 99 shall be applied as appropriate, however, the tender notice shall be construed as a notice launching the procedure or invitation to tender. Article 90 (2) may be applicable if it was referred to by the contracting authority in the tender notice or the invitation to tender.

 

Article 152

 

1.     In the event of simplified negotiated procedures, the provisions of Articles 127 (2)–(4) and 128 shall also be appropriately applied. Negotiations, however, shall not result in a divergence in the properties or conditions of the subject and the terms of the contract awarded in the procedure from the original article intended to be purchased and the contractual terms laid down at the commencement of the award procedure [Article 35 (2)] to the extent which would have not allowed the adoption of a simplified procedure.

 

2.[58]  In the case specified in Article 147 (5), the tenderer shall make a written statement declaring that it is not subject to the exclusion criteria and shall attach the official certificates on the absence of public debts as specified in Articles 60 (1) (e) and 61 (2) not later than within thirty days following the conclusion of the contract. The existence of the condition in point (g) of Article 60 (1), in cases pertaining to the scope of Act LXXV of 1996 on labour health and safety control, shall be controlled by the contracting authority according to the data published by the labour safety authority[59].

 

Article 153

 

1.     The contracting authority does not need to adopt a public procurement award procedure when ordering the activity defined in Article 5 (1)-(2) of Act XI of 1998 on Legal Practitioners as a service.

 

2.     The contracting authority shall draw up the notice on the conclusion of the contract according to the template provided for in the relevant legislation. The notice shall be sent for publication according to Article 44 (1) within five working days from the conclusion of the contract. In the notice the contracting authority shall state whether it agrees to the publication of the notice; in the absence of this agreement the notice shall not be published. However, this statement shall not affect the publication in the Public Procurement Bulleting according to Article 47 (1).

 

3.     The conclusion of a contract according to paragraph 1 shall not affect the application of Articles 1, 5 and 16 as appropriate.

 

Title 10

 

Rules concerning design contests

 

Article 154

 

1.     Upon organising a design contest, the contracting authority (for the purposes of this Title, hereinafter referred to as ‘organiser’) shall act in compliance with this Title 10.

 

2.     The detailed rules of design contests are set forth in the relevant legislation. Instances where the adoption of a design contest is mandatory may be determined in the relevant legislation.

 

 

 

 

Article 155

 

1.     The design contest may take place in the form of an open or restricted procedure.

 

2.     In the event of an open design contest, all those interested may submit a tender (project).

 

3.     In the event of a restricted design contest

 

(a)   the organiser shall have the right to set the number or the range of tenderers by sending invitations to tender to a number of candidates falling within the upper limit of the range, or

 

(b)   all those interested – except for those identified by the organiser – may submit an application to participate.

 

Article 156

 

1.     In the case of restricted design contests, the number or range of tenderers may not be less than three. The range (number) of candidates invited to tender shall be determined in the light of the magnitude, complexity and conditions of the task shall, in any event, be sufficient to ensure genuine competition.

 

2.     If the organiser applies the provisions of Article 155 (3) (a) and (b) collectively, it shall be obliged to prescribe a number or range exceeding the number of those identified.

 

3.     The organiser shall send an invitation to tender to all the candidates selected – based on the suitability criteria – up to the upper limit of the range specified, directly, simultaneously, and in writing, provided that this is allowed by the number of candidates deemed suitable. If the contracting authority did not prescribe the number or range of participants, it shall send an invitation to tender to all suitable candidates.

 

4.     The party inviting the tender shall be prohibited to define the suitability criteria in such a way that results in the elimination of certain candidates (tenderers) or in their unjustified negative or positive discrimination in any other manner.

 

Article 157

 

1.     Design contests shall be launched by way of an invitation to the design contest which shall be published in the form of a notice by the organiser. The notice shall be drawn up in accordance with the template provided in the relevant legislation.

 

2.     If the organiser has identified the candidates or prescribed the number or range of candidates [Article 155 (3)] this shall be stated in the invitation.  Upon applying the provisions in Article 155 (3) (b) the invitation to the design contest shall also refer to the possibility that in addition to those identified, any party may seek an invitation to take part in the procedure.

 

3.     If the organiser prescribes a number or range, it shall also state in the invitation to the design contest the method of ranking suitable candidates to be applied if the number of suitable candidates exceeds the number or range prescribed. For ranking, the technical capacity and professional qualification of the candidate to perform under the contract shall be taken into account.

 

4.     In the invitation to the design contest, the organiser shall specify the assessment criteria of the tenders.

 

Article 158

 

1.     Tenders shall be evaluated by an assessment panel (evaluation committee).

 

2.     The evaluation committee shall be composed exclusively of natural persons who are independent of participants in the contest.

 

3.     Where the organiser sets particular professional requirements or qualifications for the participants (candidates) in a contest, at least two thirds of the members of the evaluation committee must meet the same requirements and qualifications, respectively, or the equivalent thereof.

 

4.     The evaluation committee shall evaluate the projects submitted anonymously autonomously, in an unbiased and professional manner, on the grounds of the evaluation criteria.

 

Article 159

 

1.     The contracting authority shall publish, according to a template set forth in a separate act of legislation, a notice on the success or the unsuccessfulness of the design contest procedure. This notice shall be dispatched in not more than five days counted from the date of the contract award or from the time limit fixed for the contract award.

 

2.     The notice according to paragraph 1 shall not contain information that shall prevent legal redress that is contrary to the public interest, that infringes the business interests of an economic operator, that infringes fair competition among service providers.

 

Article 160

 

1.     The sending and publication of the notices shall be governed by the provisions of Articles 44–47 as appropriate.

 

2.     In the course of a design contest the provisions of Articles 1 and 6-7, Article 10 (7)-(8), Articles 15-16, Article 20 (1), Article 29 (1), Article 35, Article 61 (3), and Article 98 (4) shall also be applied as appropriate.

 

 

 

CHAPTER V

 

SPECIAL CONTRACT AWARD PROCEDURE FOR ENTITIES

OPERATING IN THE WATER, ENERGY, TRANSPORT

AND POSTAL SERVICES SECTORS

 

Title 11

 

The scope of application of this Chapter

 

General provisions

 

Article 161

 

1.     Entities (contracting authorities) specified in Article 162 shall act in accordance with this Chapter where

 

(a)   the value of their public procurement covering a given subject equals or exceeds the Community thresholds at the beginning of the contract award procedure;

 

(b)   they conduct a design contest procedure (Title 20) whose value according to Article 177 equals or exceeds the Community thresholds at the beginning of the procedure.

 

2.     This Chapter shall apply, when the subject of the public procurement is in connection with one or more activities – specified in Article 163 – of the contracting authority and also with other activities, but the subject of the public procurement is required primarily for providing activities specified in Article 163.

 

3.     Chapter IV shall apply, when the subject of the public procurement is in connection with one or more activities – specified in Article 163 – of the contracting authority and also with other activities, and it cannot be established for the provision of which activity the public procurement is required primarily, or the subject of the public procurement cannot be divided by its nature, or in the event of dividing it into parts it cannot be used properly, provided that the contracting authority is regarded as a contracting authority in accordance with Article 162 (1) (a) as well.

 

4.     This Chapter shall apply as well, when the subject of the public procurement is in connection with one or more activities – specified in Article 163 – of the contracting authority and also with other activities not under the provisions of Chapter V, and it cannot be established for the provision of which activity the public procurement is required, or the subject of the public procurement cannot be divided by its nature, or in the event of dividing it into parts, it cannot be used properly.

 

5.     For services specified in Annex 4 the simplified procedure (Title 19) may be adopted.  This procedure shall not be adopted for services specified in Annex 3. However, in the case of public procurements which have as their subject a service which includes both a service specified in Annex 3 and a service specified in Annex 4, a simplified procedure may be adopted, provided that the value of the service specified in Annex 4 exceeds the value of the service specified in Annex 3 at the beginning of the contract award procedure.

 

Contracting authorities

 

Article 162

 

1.     For the purposes of this Chapter, the following entities shall be considered contracting authorities if they pursue any of the activities specified in Article 163:

 

(a)   contracting authorities specified under Article 22 (1);

 

(b)   economic operators (Article 685 (c) of the Civil Code), over which one or more entities specified in point (a) above can exercise, either directly or indirectly, a dominant influence.

 

2.     For the purposes of this Chapter, entities not classified under paragraph 1 but having special or exclusive right (Article 166) to pursue any or a combination of the activities specified in Article 163 shall also be deemed contracting authorities.

 

Article 163

 

1.     The following activities — excluding those specified in Articles 164–165 — shall fall within the scope of this chapter:

 

(a)   the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of: drinking water, electricity; gas or heat; or the supply of drinking water, electricity, gas or heat to such networks;

 

(b)   the exploitation of a specific geographical area for the purpose of:

 

(ba) exploring for or extracting (mining) oil, gas, coal or other solid fuels, or

 

(bb) the provision of airport, maritime or inland port or other terminal facilities to carriers by air, sea or inland waterway, or passenger transport;

 

(c)   the provision or operation of networks providing a service to the public in the field of transport by railway, automatic systems, tram, trolley bus, bus or cable car.

 

d)    the provision of postal services or other services than postal services on condition that the latter is provided by an undertaking which provides postal services as well.

 

2.     For the purposes of paragraph 1 (c), a network shall be considered to exist where the service is provided under specific (operating) conditions laid down by a competent authority, thus, in particular, conditions on the routes to be served, the capacity to be made available or the frequency of the service.

 

Article 164

 

The supply of drinking water, electricity, gas or heat to networks operated by a contracting authority specified in Article 162 (1) (b) or paragraph 2 shall not be considered as an activity within the meaning of Article 163 (1) (a) where:

 

(a)   in the case of drinking water or electricity, the production of drinking water or electricity by the authority concerned takes place because its consumption is necessary for pursuing an activity other than that referred to in Article 163 (1), and supply to the network depends only on the authority’s own consumption and has not exceeded thirty percent of the authority’s total production of drinking water or energy, having regard to the average for the preceding three years, including the current year;

 

(b)   in the case of gas or heat, the production of gas or heat by the authority concerned is the unavoidable consequence of pursuing an activity other than that referred to in Article 163 (1), and supply to the network is aimed only at the economic exploitation of such production and amounts to not more than twenty percent of the authority's turnover having regard to the average for the preceding three years, including the current year.

 

Article 165

 

The provision of bus transport services to the public shall not be considered to be an activity within the meaning of Article 163 (1) (c) where other entities are free to provide those services, either in general or in a particular geographical area, under the same condition as the contracting authority.

 

Article 166

 

For the purposes of Article 162 (2) special or exclusive rights mean rights based on legislation, or granted by a competent authority by way of regulatory or administrative provision, and on the basis of which one or only a limited number of entities can be authorised to carry out an activity defined in Article 163, and which substantially affects the ability of other entities to carry out such activities.

 

Subject of the public procurement

 

Article 167

 

1.     Subjects of public procurements may be the following: public supply, public works or public services, except for works concessions (Article 26) and service concessions [Article 242 (4)].

 

2.     With regard to public supply contracts Article 24, to public works Article 25 (1), while to public services the provisions set forth in Article 27 shall be applied. Article 28 shall also be applicable.

 

Exceptions

 

Article 168

 

1.     The procedure set forth in this Chapter shall not apply to contracts or design contests which

 

(a)   are directly not related to the pursuit of the activities of the contracting authority specified in Article 163, or

 

(b)   are related to an activity as specified in Article 163, pursued by the contracting authority in a non-member country, under conditions not involving the physical use of a network or geographical area within the European Community.

 

2.     However, this Chapter shall apply to contracts or design contests awarded or organized by a contracting authority conducting an activity related to drinking water as specified in Article 163 (1) (a), and which

 

(a)   are connected with hydraulic engineering projects, irrigation or land drainage, provided that the volume of water intended for the supply of drinking water represents more than twenty percent of the total volume of water made available by these projects or irrigation or drainage installations, or

 

(b)   are connected with the disposal or treatment of sewage.

 

3.     The contracting authority shall notify – through the Public Procurement Council – to the European Commission, at the request thereof, the information regarding the activities specified in paragraph 1 as exceptions.

 

4.     The subject of the public procurement shall be deemed to be in direct relation with the activity specified in Article 163, pursued by the contracting authority, if the activity could not be pursued without the subject of the public procurement.

 

Article 169

 

The procedure set forth in this Chapter shall not apply to:

 

(a)   contracts for the supply of water awarded by a contracting authority conducting an activity related to drinking water as specified in Article 163 (1) (a);

 

(b)   contracts for the supply of energy or of fuels for the production of energy awarded by a contracting authority conducting an activity related to energy, gas or heat as specified in Article 163 (1) (a), or a contracting authority conducting an activity specified in Article 163 (1) (ba).

 

Article 170

 

The procedure set forth in this Chapter shall not apply to contracting authorities pursuing an activity specified in Article 163, if, pursuant to Article 30 of the Directive 17/2004/EC, the European Commission establishes that the given activity is directly exposed to competition and has made a decision to that effect. The procedure set forth in Articles 175/A to 175/C shall be applied to establish whether the given activity is directly exposed to competition.

 

Article 171

 

Article 172

 

1.     The procedure set forth in this Chapter shall not apply to public supply contracts awarded for purposes of resale or hire to third parties, provided that the contracting authority enjoys no special or exclusive right to sell or hire the subject of such contracts and other undertakings may obtain such rights subject to the same terms and conditions as the contracting authority.

 

2.     The contracting authority shall notify – through the Public Procurement Council – to the European Commission, at the request thereof, the groups of goods and activities specified in paragraph 1 as exceptions.

 

Article 173

 

1.     The procedure set forth in this Chapter shall not be applied

 

a)    when the contracting authority awards the service contract to an undertaking, in relation with which it is under the obligation to prepare an annual consolidated report in accordance with the Act on Financial Reporting, or which the contracting authority may control, or which may control the contracting authority directly or indirectly, or to another entity which is directly or indirectly controlled by the same undertaking as the contracting authority, or

 

b)    when the service contract as awarded by a joint venture formed by a number of contracting authorities for the sole purpose of carrying out an activity within the meaning of Article 163, to an undertaking which has a relationship specified in point (a) above with any of the contracting authorities involved, provided that at least eighty percent of the average turnover of the undertaking  defined in points (a) and (b) with respect to public supply or services or  public works within the European Union for the preceding three years derives from economic activities conducted with the entities with which it has a relationship defined in point (a) above.

 

2.     When because of the date on which the undertaking, within the meaning of paragraph 1, concluding the contract with the contracting authority, was created or commenced activities, the turnover is not available for the preceding three years, it will be sufficient for that undertaking to show that the turnover referred to in paragraph 1 is credible, particularly by means of business projections.

 

3.     When more than one undertaking, which are in a relationship with the contracting authority as specified in paragraph 1 (a), provides the same or similar services, supplies or works for the contracting authority, the total turnover deriving from the provision of services, supplies or works by these undertakings shall be taken into account.

 

4.     Furthermore, the procedure set forth in this Chapter shall not apply

 

(a)   when the service contract is awarded by a joint venture formed by a number of contracting authorities for the sole purpose of carrying out an activity within the meaning of Article 163 to any of the contracting authorities involved, or

 

(b)   when the contract is awarded by a contracting authority to such a joint venture of which it forms part, provided that the joint venture has been set up in order to carry out the activity concerned over a period of at least three years and that the instrument setting up the joint venture stipulates that the contracting authorities, which form it, will be part thereof for at least the same period.

 

5. The contracting authority shall communicate – through the Council for Public Procurement – to the European Commission, at request, regarding the application of paragraphs (1)-(4), the names of the undertakings concerned, the nature and value of the contracts involved, and any such conditions or proof which may be deemed necessary by the European Commission to establish if the relationship between the contracting parties complies with the requirements of this Article.

 

Article 174

 

Furthermore, this Chapter shall not apply to the following services:

 

(a)   contracts for the acquisition of existing buildings or other immovable property or concerning rights thereon; except financial service contracts concluded (in whatever form) in connection with such contracts;

 

(b)   financial services as defined in category 6 of Annex III, in connection with the issue, sale, purchase or transfer of securities or other financial instruments or which aim to raise money or capital in order to realise the monetary, the exchange rate or the reserve management policy, or the debt management policy of the central government;

 

(c)          

 

(d)   contracts for arbitration, mediation and conciliation services;

 

(e)   employment contracts, public service relationship, legal status of public servants,  public prosecutors, court employees, law officers and members of the armed forces;

 

(f)    research and development service contracts other than those where the benefits accrue exclusively to the contracting authority for its use in the conduct of its own affairs, on condition that the service provided is wholly remunerated by the contracting authority.

 

(g)   when the services are provided by any of the contracting authorities specified in Article 162 (1) (a) or the joint ventures set up by them on the basis of exclusive rights derived from law.

 

Article 175

 

The procedure set forth in this Chapter shall not apply

 

(a)   to supply contracts that concern a state secret or a service secret or the essential security interests of the country (national security), and contracts requiring special security measures;

 

(b)   to supply contracts and design contests where the contract is awarded pursuant to a particular procedure laid down in an international agreement concluded with a non-member country, which covers supplies intended for the joint implementation or exploitation of a project or design contest by the signatory States;

 

(c)   to supply contract where the contract is awarded pursuant to a special procedure laid down in an international agreement, or international memorandum of understanding or co-operation agreement which relates to the stationing, passing through and activation of troops (military forces);

 

(d)   to supply contracts awarded pursuant to the particular procedure specified by an international organisation.

 

Procedure for establishing whether a given activity is directly exposed to competition

 

Article 175/A

 

1.     The applicability of Article 170 shall be decided in conformity with the provisions on competition in the Treaty establishing the European Union. The characteristics of the activity specified in Article 163 (1), the existence of the alternative services, the prices and the actual or potential presence of more than one supplier of the services in question shall be especially examined.

 

2.     For the purposes of paragraph 1, access to a market shall be deemed not to be restricted if the Member State has implemented and applied the provisions in Annex XI of Directive 17/2004/EC of the European Parliament and of the Council. If the free access to a given market cannot be presumed on the basis of this, it must be demonstrated that access to the market in question is free de facto and de jure.

 

Article 175/B

 

1.     The exception specified in Article 170 may be applied, if the European Commission

 

(a)   has established in a procedure specified in paragraph 2, the fact that the given activity is exposed to real competition, or

 

(b)   has not adopted a decision within the period specified in paragraph 2.

 

2.     Article 30 paragraphs 5 and 6 of Directive 17/2004/EC of the European Parliament and of the Council shall govern the procedure of the European Commission.

 

Article 175/C

 

1.     The decision of the European Commission on the applicability of Article 170 may be initiated by the Office of Economic Competition or the contracting authority, informing the Council for Public Procurement at the same time, if it is believed that the conditions of the applicability of Article 170 exist for all the activities specified in Article 163 (1). The detailed rules for the application of this procedure are set by the 15/2005/EC Decision of the Commission. The Commission may initiate the procedure on the applicability of Article 170 ex officio.

 

2.     If the procedure of the European Commission is initiated by the Office of Economic Competition, with the dispatch of its opinion with explanation it shall inform the European Commission at the same time, of all relevant facts in connection with the performance of the given activity under conditions of competition, in particular of any provisions, administrative decisions or agreements concerning compliance with the conditions set out in Article 175/A.

 

3.     If the adoption of the decision is initiated by the contracting authority or the European Commission ex officio, the Office of Economic Competition shall inform the European Commission of the information specified in paragraph 2, if requested.

 

4.[60]  

 

Community thresholds

 

Article 176

 

1.     For the purposes of this Chapter the threshold for goods and service contracts is EUR 422.000.

 

2.     For the purposes of this Chapter the threshold for works contracts is EUR 5.278.000.

 

Article 177

 

For the purposes of this Chapter (Title 20) the threshold for design contests shall be as follows:

 

(a)   EUR 422.000 where the design contest envisages the award of a service contract;

 

(b)   EUR 422.000 in the case of all design contests where the contest prize and the total amount of payments to be made to participants equals or exceeds these thresholds.

 

Article 178

 

1.     The value of the thresholds under Articles 176 to 177 and 181 (1)–(2) expressed in Euro and in national currencies (in HUF) shall be published in the Official Journal of the European Union for the subsequent two years.

 

2.     The thresholds referred to in paragraph 1 shall also be published by the Council for Public Procurements in the Public Procurement Bulletin.

 

 

Value of public procurements

 

Article 179

 

1.     The value of a public contract shall be the highest consideration requested or offered in general for its subject at the time of the beginning of the contract award procedure, which is to be calculated net of VAT and taking into account the provisions of Articles 36 to 40 and paragraph 2 (hereinafter referred to as ‘estimated value’). The value of total consideration is to be calculated taking into account the value of the option to buy.

 

2.     The estimated value of a procurement shall include the prizes and payments (commissions) paid by the contracting authority to candidates or tenderers where the contracting authority provides such payments to candidates, tenderers.

 

3.     The time of the beginning of the contract award procedure shall be the date of publication of the notice whereby the contract award procedure is launched, or, in the cases of a negotiated procedure without prior publication of a tender notice and in specific cases of a simplified procedure, it shall be the date when the invitation is sent or, in specific cases, that of the beginning of the negotiation, respectively. For the purposes of Article 40 (2) (a) this shall be the governing date.

 

4.     Where a contract award procedure as specified in this Chapter is to be conducted according to Article 40 (2) due to the aggregate value of several supply products each of which has a value below the Community threshold, their acquisition through more than one contract award procedures under this Chapter despite the calculation of their aggregate value shall not constitute an act of avoidance of the application of this Act.

 

5.     Where no account has been taken of the provisions of Article 40 (2) in calculating the estimated value, the supply products still to be procured in the fiscal year or in the twelve months in question may, regardless of their individual value, only be covered by a contract which is to be concluded pursuant to a contract award procedure under this Chapter.

 

 

Title 12

 

General rules concerning special contract award procedures

 

Types of contract award procedures

 

Article 180

 

1.     Contract award procedures may be open or restricted or negotiated procedures. A negotiated procedure without notice may only take place if it is permitted by this Chapter.

 

2.     In open or restricted procedures the contracting authority shall be bound by the conditions specified in the invitation and in the documentation, while the tenderer shall be bound by his tender. In open or restricted procedures no negotiation may take place.

 

3.     Depending on the type of the notice, the following contract award procedures may be distinguished: open procedure launched by a tender notice; restricted or negotiated procedure launched by an invitation to participate; restricted or negotiated procedures launched by a periodic indicative information notice, or restricted and negotiated procedures launched by a pre-qualification notice.

 

4.     The contracting authorities may also apply a procedure for a framework agreement (Title 18).

 

5.[61]  The contracting authority may set up and operate a dynamic purchasing system, the purpose of which is to pre-select those who are entitled to participate in the procedures to be conducted in order to realise certain public procurements. The detailed rules pertaining to the dynamic purchasing system shall be determined in a separate act of legislation.

 

6.     In the course of a contract award procedure there shall be no changeover from one type of procedure to another one.

 

7.     In the event of an unsuccessful open, restricted or negotiated procedure, the contracting authority shall decide to launch a new procedure, in conformity with the rules for the application of the various types of procedures, except where it no longer intends to carry out the procurement in question.

 

8.     Save as otherwise provided for by this Chapter, the rules set forth in Chapter IV shall apply as appropriate to open, restricted and negotiated procedures.

 

Prior information

 

Article 181

 

1.     Contracting entities may prepare – after the beginning of the fiscal year- a periodic indicative information notice for the given year or maximum for the subsequent 12 months in which they indicate

               

a)    the total procurement under goods contracts (exclusive of exceptions and equalling or exceeding Community thresholds), where the total estimated value equals or exceeds EUR 750.000;

       

b)    the total procurement under contracts for services listed in Annex III (exclusive of exceptions and equalling or exceeding Community Thresholds), where the total estimated value equals or exceeds EUR 750.000.

 

2.     Contracting authorities may prepare a periodic indicative information notice in which they indicate the essential characteristics and conditions of public works contracts they envisage awarding where the estimated value of these contracts equals or exceeds the Community threshold governing public works contracts. The information notice shall be prepared as soon as possible after the decision approving the implementation of the works.

 

Article 182

 

1.     Contracting authorities shall publish their periodic indicative information by means of a notice. Such notices shall be drawn up in accordance with a model given in the relevant legislation, and they shall be sent by the deadline provided for in Article 181 (1), (3) at the latest. Contracting authorities may publish their periodic indicative information notice on their homepage. Publication of a periodic indicative information notice on a homepage shall take place only after the dispatch of the notice by electronic means to the Office for Official Publications of the European Communities. Such notices shall be drawn up in accordance with a template given in the relevant legislation in this case as well.

 

2.     In the case of public supply contracts, indicative consolidated information notices shall be prepared by product categories, and the relevant product category shall be specified by reference to CPV.

 

3.     In the case of service contracts, indicative overall information notice shall be prepared by categories of services listed in Annex 3.

 

4.     The contracting authority may publish a periodic indicative information notice on its major project or public works without repeating the information having been included in a previous notice, provided that it clearly states that the latter notice is of supplementary nature.

 

5.     Publication of a periodic indicative information notice shall not entail any obligation to conduct a procedure for the award of a contract included therein.

 

6-7.        

 

Article 183

 

If the periodic indicative information notice also serves to invite a restricted or negotiated procedure, the provisions set forth in Title 15 shall be applied.

 

Sending and publication of notices

 

Article 184

 

1.     For the purposes of this Chapter, publication of a notice shall mean its publication in the Official Journal of the European Union and in the Tenders Electronic Daily (hereinafter referred to as ‘TED data bank’), unless provided otherwise in this Chapter. In the event of publishing the notice on the homepage of the contracting authority [Article 182 (1)] the date of publishing it on the homepage shall be the governing date with regard to the legal effects related to the notice.

 

2.     The contracting authorities shall send the notices as rapidly as possible and by the most appropriate channels via the Public Procurement Council to the Office for Official Publications of the European Communities.

 

3.     The Office for Official Publications of the European Communities shall publish the notices not later than 12 days after their dispatch; or in case of sending the notice by electronic means and in a manner specified in the relevant legislation or, in exceptional cases, when the notice on the tender notice or invitation to participate (Articles 189 and 202) has been submitted by fax, at the request of the contracting authority this period shall be reduced to five days.

 

4.     Before forwarding or dispatching the notice sent by the contracting authority, the Public Procurement Council (Secretariat) shall verify that the notice complies with the legislation applicable to public procurement. For controlling notices, a fee - the amount of which is specified in the relevant legislation - shall be paid.

 

5.     The Public Procurement Council shall dispatch the notice for publication. The Public Procurement Council shall have proof of the dispatch date.

 

6.[62]  When the notice is communicated not by electronic means, or it is communicated by electronic means but not in accordance with the procedures specified in the relevant legislation, the Public Procurement Council – on the request of the contracting authority- sends the notice to the Office for Official Publications of the European Communities by electronic means in accordance with the relevant legislation. For transmitting the notice in this way, by electronic means, a fee – specified in the relevant act of legislation – shall be paid.

 

7.     The Office for Official Publications of the European Communities sends a confirmation of the publication of the notices communicated, indicating the date of publishing. Such confirmation shall constitute proof of publication.

 

Article 185

 

1.     The notices under this Chapter shall be published in full in the Official Journal of the European Union and in the TED data bank in the official language chosen by the contracting authority. The summary of the key elements of the notices shall  be published in the official languages of the European Union, the text drawn up and sent in the official language chosen by the contracting authority alone being authentic.

 

2.     The cost of publication of the notices in the Official Journal of the European Union (in the TED data bank) shall be borne by the European Union.

 

3.     Detailed rules for the sending and publication of notices shall be laid down in the relevant legislation.

 

Article 186

 

Contracting authorities may also request the publication, within the meaning of Article 184 (1), of notices concerning public contracts the publication of which is not obligatory in accordance with this Chapter.

 

Article 187

 

1.     The notices covered by this Chapter (Article 184 (1)) shall be published for information by the Public Procurement Council in the Public Procurement Bulletin according to the relevant legislation, therefore contracting authorities shall send the notices to be published to the Public Procurement Council. Contracting authorities may publish the notices by any other channels, provided that such publication takes place only after the dispatch of the notice to the Office for Official Publications of the European Communities. Notices so published shall not contain information other than that published in the Official Journal of the European Union (in the TED data bank), or that published on the homepage of the contracting authority, and shall mention the date of dispatch to the Office for Official Publications, and the date of publishing on the homepage.

 

2.     The publication rules laid down in Part Three shall apply as appropriate to the publication in the Public Procurement Bulletin of notices covered by this Chapter.

 

Title 13

 

Open procedure

 

Rules to be applied

 

Article 188

 

In respect of open procedures, the rules set forth in Title 3 of Chapter IV (Articles 48–99) – also taking into consideration the provisions of Title 13 – shall be applied as appropriate.

 

Launching the procedure

 

Article 189

 

The open procedure is launched by an tender notice which shall be published in a notice be drawn up by the contracting authority in accordance with a template provided in the relevant legislation.

 

Technical specifications

 

Article 190

 

The contracting authority shall provide the technical specifications for public procurement regarding the provisions of Article 58.

 

Article 191

 

1.     At request, the contracting authority shall make available to the tenderers the technical specifications regularly referred to, including the technical specifications referred to in the periodic indicative information notice.

 

2.     If the technical specifications referred have been defined in documents accessible to the tenderers it is sufficient if the contracting authority makes reference to such documents.

 

Article 192

 

In the context of provision of technical specifications, qualification and selection of the tenderers, the evaluation of the tenders and award of contracts, contracting authorities may impose requirements with a view to protecting the confidential nature of information which they make available. The above shall not prejudice the provisions in Article 96 (3) and Article 99 (4).

 

Grounds for exclusion

 

Article 193

 

In respect of the exclusion criteria, the provisions set forth in Articles 60–63 and 71 (3) shall be applied as appropriate, provided however, that in the cases specified in Article 63 (2) (c) and (d) a simple statement may also be accepted.

 

Suitability of the tenderer and its subcontractor

 

Article 194

 

With regard to the suitability of the tenderer and its subcontractor intended to be employed for the performance of more than 10% of the contract, the provisions stipulated in Article 65–67, Article 68 (4)–(5), Articles 69 and Article 71 (4) shall apply as appropriate, provided that the contracting authority may prescribe other objective suitability criteria and methods of certification, nevertheless, the provisions of Article 69 (3) shall be applied as appropriate.

 

Final date fixed for receipt of tenders

 

Article 195

 

1.     The time limit to submit tenders shall be fixed by the contracting authorities at not less than 52 days from the date of dispatch of the notice.

 

2.     If the contracting authority had dispatched a periodic indicative information notice at least fifty-two days but no more than twelve months prior to the tender notice, which also contained the data available at the dispatch of the tender notice according to the tender notice template referred to in Article 208 (2), the time limit to submit tenders indicated in paragraph 1 may be shorter. In this case, as a general rule, the time limit to submit tenders shall be at least thirty-six days after the dispatch of the tender notice, which time limit may, in case of extreme urgency, be reduced to twenty-two days provided that the notice is dispatched by electronic means.

 

3.     The time limit to submit tenders referred to in paragraphs 1 and 2 may be shortened by seven days, provided that the contracting authority sends the notice by electronic means in accordance with the relevant legislation.

       

4.     The time limit to submit tenders referred to in paragraphs (1)-(3) may be reduced by five days, provided that the contracting authority offers free and full direct access by electronic means to the tender specifications for the tenderers from the date of publication of the notice, in accordance with the relevant legislation, specifying in the text of the notice the internet address at which this documentation is accessible.

 

5.     Where the tender specifications are too bulky, or where the tenders can be made only after on-the-spot inspection of the documents or after a visit to the site, the contracting authority shall fix the time limit to submit tenders accordingly, in a time limit longer than that set out in paragraphs (1)-(4).

       

6.     The time limit to submit tenders shall always be set leaving sufficient time for the preparation of appropriate tenders. The cumulative effect of the reductions provided for in paragraphs (2)-(4) may in no case result in a time limit less than 22 days, or when the notice is communicated by fax or electronic means, less than 15 days from the date on which the notice is sent.

 

Abnormally low consideration

 

Article 196

 

If a tender contains abnormally low price, the contracting authority shall act according to Article 86.

 

Invalid tenders, disqualification of tenderers

 

Article 197

 

1.     In respect of invalid tenders and the disqualification of tenderers, the provisions set forth in Article 88 shall apply as appropriate, provided that the contracting authority may exclude from the procedure tenderers

 

(a)   who are not eligible for national treatment [Article 1 (3)]; or

 

(b)   who offer a product in the tender not eligible for national treatment due to its place of origin [Article 1 (3)], or,

 

(c)   submitting an offer for public supply where the proportion of the products originating from a country not eligible for national treatment [Article 1 (3)] exceeds fifty percent of the total value of the products constituting the tender.

 

2.     For the purposes of paragraph 1 (c) software used for electronic telecommunications network equipment shall be considered as goods.

 

Acceptance of variant offers

 

Article 198

 

1.     In the case of variant (alternative) offers only those may be admissible which meet the minimum requirements and technical specifications set out by the contracting authority in the tender notice or the tender specifications.

 

2.     Contracting authorities may not reject the variant on the sole grounds that

 

(a)          

 

(b)   it would lead, if successful, to a supply contract rather than a public service contract, or vice versa.

 

Preferential treatment

 

Article 199

 

1.     In the case of contracts for public supply, where two or more tenders are identical in the light of the evaluation criteria defined in Article 57 (2), the contracting authority shall give preference to the tenders where the proportion of the products originating from a country eligible for national treatment exceeds fifty percent of the total value of the products constituting the tender.

 

2.     For the purposes of paragraph 1

 

(a)   preferential tenders shall be deemed identical, if the price difference – as compared to the price quoted in the non-preferential tender [Article 197 (1) (c)] – does not exceed three percent,

 

(b)   software used for electronic telecommunications network equipment shall be considered as goods.

 

3.     In such a case, the contract shall be awarded to the preferential tenderer, and if there are several tenders subject to preferential treatment, the tenderer quoting the lower price. In the event of identical prices, Article 90 (2) shall be applied as appropriate if it was referred to by the contracting authority in its tender notice.

 

4.     Contracting authorities shall not apply paragraph 1, where the preference of a tender would oblige the contracting entity to acquire equipment having technical characteristics different from those of existing equipment, resulting in incompatibility, technical difficulties in operation and maintenance, or disproportionate costs.

 

Notice on the result of the procedure

 

Article 200

 

1.     Contracting authorities shall publish the result of the award procedure in a notice drawn up according to the template provided in the relevant legislation.

 

2.     The notice shall be dispatched for publication in the Public Procurements Bulletin not later than within five working days from the announcement of results, or the expiry of the deadline for the announcement of results.

 

3.     The notice shall be dispatched for publication pursuant to Article 184 (1) not later than within five working days from the conclusion of the contract, or, failing this, the expiry of the deadline for the conclusion of the contract.

 

 

Title 14

 

Restricted and negotiated procedures launched by a notice for invitation to participate

 

Applicable rules

 

Article 201

 

1.     In respect of restricted procedures launched by a notice for invitation to participate, the rules pertaining to restricted procedures set forth in Chapter IV (Titles 3‑5) – also taking into consideration the provisions of Titles 13 and 14 – shall be applied as appropriate. Article 118 (3) shall not be applicable and Article 136 may not be applied.

 

2.     In respect of negotiated procedures launched by a notice for invitation to participate, the rules pertaining to negotiated procedures launched by a notice set forth in Chapter IV (Titles 3–4, Articles 126–130) – also taking into consideration Titles 13 and 14 – shall be applied as appropriate. Article 118 (3) and Article 124 (2) shall not be applicable and Article 136 may not be applied.

 

Launching the procedure

 

Article 202

 

The restricted and negotiated procedures are launched by an invitation to participate which shall be published in a notice be drawn up by the contracting authority in accordance with the template provided in the relevant legislation.

 

Participation deadline

 

Article 203

 

1.     As a general rule, the contracting authority shall not determine the time limit for participation as shorter than a period of thirty-seven days from the date of dispatching the notice for invitation to participate. Exceptionally, in cases of extreme urgency the time limit for participation may be reduced to twenty-two days, and if the notice is communicated by fax or by electronic means, the deadline may be reduced to fifteen days.

 

2.     The time limit for participation of thirty-seven or twenty-two days, as specified in paragraph 1, may be reduced by no more than seven days, provided that the notice for invitation to participate is communicated by the contracting authority by electronic means, in accordance with the relevant legislation.

 

3.     The cumulative effect of the reductions provided for in paragraphs 1 and 2 may in no case result in a time limit for participation of less than fifteen days from the date on which the notice for invitation to participate is sent.

 

Determination of the number or range of tenderers

 

Article 204

 

1.     In the case of restricted and negotiated procedures, the contracting authority may set the number or range of tenderers, provided that it sends an invitation to tender to candidates at least equalling the number or range set.

 

2.     The range or number of candidates invited to tender shall be determined in the light of the specific nature of the subject of the contract and shall, in any event, be sufficient to ensure genuine competition. The range must number at least three tenderers.

 

3.     If the contracting authority prescribes the number or range of participants, this shall be indicated in the invitation to participate.

 

4.     In the invitation to participate the contracting authority may not identify in advance the parties it intends to invite.

 

5.     If the contracting authority prescribes a number or range, it shall also state in the invitation to participate the method of ranking suitable candidates to be applied if the number of suitable candidates exceeds the number or range prescribed.  For ranking, the financial and economic standing, the technical capacity and professional qualification of the candidate to perform under the contract shall be taken into account.

 

6.     The contracting authority shall send an invitation to tender to all the candidates selected – based on their financial and economic standing, technical capacity and professional qualification – directly, simultaneously, and in writing, provided that this is allowed by the number of candidates deemed suitable. If the contracting authority did not prescribe the number or range of participants, it shall send an invitation to tender to all suitable candidates. Candidates invited to tender shall not submit joint tenders.

 

Final date fixed for receipt of tenders

 

Article 205

 

1.     The time limit for the receipt of tenders may be set by mutual agreement between the contracting authority and the selected candidates, provided that all the candidates have the same time to prepare and submit their tenders.

 

2.     When the contracting authority and the selected candidates, in accordance with paragraph 1, cannot reach agreement on the time limit for the receipt of tenders, the contracting authority shall fix the time limit which shall, as a general rule, not be less than twenty-four days from the date of the invitation to tender. Exceptionally, in cases of extreme urgency the time limit to submit tenders may be reduced to ten days, provided that the invitation to tender is communicated by fax or by electronic means.

 

3.     The twenty-four days time limit for the time limit to submit tenders, as prescribed in paragraph 2, may be further reduced by the contracting authority, provided that the contracting authority offers free and full direct access to the tender specifications by electronic means for the tenderers from the date of dispatch of the invitation to tender, in accordance with the relevant legislation, and specifying in the text of the notice the internet address at which this documentation is accessible.

 

4.     The cumulative effect of the reductions provided for in paragraphs (2)-(3) may in no case result in a time limit to submit tenders of less than 10 days. In case of a mutual agreement between the contracting authority and the selected candidates, in accordance with paragraph 1, a shorter time limit may be set.

 

5.     The time limit to submit tenders shall always be set leaving sufficient time for the preparation of appropriate tenders.

 

Article 206

 

The contracting authority shall ensure that the tender specifications be available from the dispatch of the invitation to tender until the expiry of the time limit to submit the tenders.

 

 

Title 15

 

Restricted and negotiated procedures invited by way of a periodic indicative information notice

 

Applicable rules

 

Article 207

 

In respect to restricted procedures initiated by way of a periodic indicative information notice, the rules pertaining to restricted procedures launched by way of a notice, as set forth in Article 201 (1), while to negotiated procedures initiated by way of such notices the rules set forth in Article 201 (2) shall be applied as appropriate, also taking into consideration the provisions stipulated in Title 15.

 

Announcement of the procedure, the periodic overall information notice

 

Article 208

 

1.     A periodic indicative information notice may be applied to announce both a restricted and a negotiated procedure.

 

2.     The notice shall be drawn up according to the template provided  in the relevant legislation, and published.  In the notice the contracting authority shall state especially the following:

 

(a)   the description of the subject-matter of the planned contract(s);

 

(b)   the type of the award procedure (restricted or negotiated procedure) to commence without the publication of any further notice, by way of a direct invitation to participate;

 

(c)   the deadline for the submission of the written statement expressing interest (hereinafter referred to as ‘declaration of intent’), the language(s) of the statement;

 

(d)   the planned date of commencement of the procedure(s).

 

Starting the procedure, direct invitations to participate

 

Article 209

 

1.     Based on the declarations of intention submitted before the deadline, the contracting authority shall request all declarers directly, simultaneously and in writing to confirm their declarations of intention and to submit their applications to participate (direct invitations to participate).

 

2.     The direct invitations to participate shall be sent within twelve months after the publication of the announcement on the periodic indicative information at the latest.

 

3.     Restricted and negotiated procedures are started by sending out the direct invitations to participate. With respect to the starting of the procedure Article 48 (2)–(3) shall apply mutatis mutandis.

 

4.     The contracting authority shall not be required to start the procedure if some force majeure occurring after the publication of the periodic indicative information notice renders it unable to make the contract or to perform under an executed contract. In such cases the contracting authority shall immediately inform in writing the submitters of declarations of intention and the Public Procurement Council.

 

Article 210

 

1.     The direct invitation to participate shall contain at least the following:

 

(a)   name, address, phone and fax number (e-mail) of the contracting authority;

 

(b)   if need be, the data under point (a) of the organisation designated by the contracting authority, which is responsible for distributing tender specifications, technical specifications (Article 191) and additional (interpretative) information;

 

(c)   the type of procurement procedure (restricted or negotiated);

 

(d)   the object and quantity of the procurement (including buy options);

(e)   for regular or periodical contracts (Article 37) the object and quantity of the next procurement and – if possible – the planned time of publication of the corresponding notice;

 

(f)    the specification of the contract;

 

(g)   the term of the contract or the performance deadline;

 

(h)   grounds for disqualification;

 

(i)    the requirements of qualification and the details specified in Article 69 (2);

 

(j)    whether the correction of deficiencies is allowed or prohibited;

 

(k)   the deadline for submitting applications to participate;

 

(l)    the address the application to participate is to be sent to;

 

(m)  the language(s) of the application;

 

(n)   the place and time of the opening of the applications;

 

(o)   those entitled to attend the opening of the applications;

 

(p)   time of announcing the result of the application phase;

 

(q)   the planned date of sending the invitation to tender;

 

(r)    the assessment criterion of tenders according to Article 57 (2);

 

(s)    the method, place and financial requirements of collecting the documentation;

 

(t)    reference to the published periodic indicative information notice and the date of publication;

 

(u)   the date of dispatching the direct invitations to participate;

 

(v)   other information according to the template provided in the relevant legislation.

 

2.     The contracting authority may specify in the direct invitation to participate the number or range of tenderers provided that it sends an invitation to tender to candidates at least equalling the number or range set.

 

Article 211

 

1.     As a general rule, the contracting authority shall not determine the time limit for participation as shorter than a period of thirty-seven days from the date of dispatching the notice for direct invitation to participate. Exceptionally, in cases of extreme urgency the time limit for participation may be reduced to twenty-two days, and if the notice is communicated by fax or by electronic means, the time limit may be reduced to fifteen days.

 

2.     The time limit for participation of thirty-seven or twenty-two days, as specified in paragraph 1, may be reduced by no more than seven days, provided that the notice for invitation to participate is communicated by the contracting authority using electronic means, in accordance with the relevant legislation.

 

3.     The cumulative effect of the reductions provided for in paragraphs 1 and 2 may in no case result in a time limit for participation of less than fifteen days from the date on which the notice for invitation to participate is sent.

 

Invitation to tender

 

Article 212

 

The invitation to tender shall include at least the following:

 

(a)   name, address, phone and fax number (e-mail) of the contracting authority;

 

(b)   reference to the published periodic indicative information and its day of publishing;

 

(c)   the method, place and financial requirements of collecting the documentation, if it is not sent simultaneously with the invitation to tender;

 

(d)   in compliance with the direct invitations to participate, if need be, the certificates, declarations and documents certifying that the tenderer or its subcontractor is not under disqualification in the tendering phase and continues to fulfil the contract performance requirements;

 

(e)   the contract evaluation criteria (Article 57) if the direct invitations to participate did not include the details specified in Article 57 (3);

 

(f)    whether the correction of deficiencies is allowed or prohibited;

 

(g)   the deadline for submitting the tenders;

 

(h)   the address the tenders are to be sent to;

 

(i)    the language(s) of the tender;

 

(j)    the place and time of tender opening;

 

(k)   the persons entitled to attend the tender opening;

 

(l)    the binding period of the tender (except for negotiated procedures);

 

(m)  for negotiated procedures, the course and the fundamental rules specified by the contracting authority of the negotiations, and the date and time of the first negotiation;

 

(n)   the date and time of the announcement of the winners and the planned date and time of the conclusion of the contract, if not otherwise indicated in the direct invitations to participate;

 

(o)   the date of sending the invitation to tender.

 

 

Title 16

 

Restricted and negotiated procedures published by means of prequalification notices

 

Applicable rules

 

Article 213

 

The rules set forth in Article 201 (1) and (2) shall apply to restricted procedures announced in a prequalification notice and negotiated procedures announced in a prequalification notice respectively in accordance with the provisions of Title 16.

 

Publication of the procedure, prequalification notice

 

Article 214

 

1.     Restricted and negotiated procedures may also be published by means of prequalification notices.

 

2.     The prequalification notice shall be drawn up according to a template provided in the relevant legislation and shall be published. The contracting authority shall include in the notice especially the following:

 

(a)   name, address, phone and fax number (e-mail) of the contracting authority;

 

(b)   the purpose of the prequalification system, the subject of the public procurements planned for the relevant period of time;

 

(c)   information on the duration of the prequalification system;

 

(d)   the method, place and financial requirements of collecting the prequalification documentation;

 

(e)   the criteria of prequalification and the means of certification or a comprehensive description thereof;

 

(f)    the address the prequalification application is to be submitted to.

 

3.     If the duration of the prequalification system is more than three years the prequalification notice shall be published annually. If the duration is shorter the first notice will suffice.

 

The contracting authority’s prequalification system, the prequalification of the candidates

 

Article 215

 

1.     The contracting authority may set up and operate a system for the candidates’ prequalification, aimed at a preliminary selection of those entitled to participate in restricted and negotiated procedures for specific procurements.

 

2.     The contracting authority shall provide for the candidates to be able to apply for prequalification at any time after the publication of the prequalification notice and during the entire time of operation of the system.

 

3.     The contracting authority shall specify – in accordance with Article 216 and if applicable with Article 58 – the details of the prequalification system’s operation and the criteria of prequalification and the means of certification. The prequalification system may comprise different degrees of qualification.

 

4.     If needed, the contracting authority may review and amend the rules of operation of the prequalification system, the qualification criteria and the means of certification.

 

5.     The contracting authority shall keep a record of the pre-qualified candidates (the list of pre-qualified candidates). The list may be broken down by the subject of public procurement or its subgroup. The list shall include the name and address (contact details) of at least two pre-qualified candidates and the dates of inclusion in the list. The list shall be made public.

 

Article 216

 

1.     The contracting authority shall specify, in compliance with Article 60 (1), Article 61 (1)–(2), Article 63 (2), Articles 66–68 and Article 69 (1)–(3), the conditions of inclusion in the candidates’ list (prequalification criteria) and the means of certification, while in cases specified in Article 63 (2) c) and d) a simple declaration may be accepted, and other objective prequalification criteria and means of certification of the qualification may be required but the provisions of Article 69 (3) shall still be complied with. The contracting authority shall have the right to choose from the stated prequalification criteria.

 

2.     When specifying the prequalification criteria, the candidates shall not be discriminated based on their seat or place of establishment, or in any other way. Contracting authorities shall not require certificates which are already available to them from the candidates.

 

Article 217

 

1.     The contracting authority shall prepare prequalification documentation in which it shall especially specify those mentioned in Article 215 (3), and the time limit for the assessment of prequalification applications. The time limit for the assessment shall not be longer than six months. If the assessment is expected to take longer than four months, the contracting authority shall inform the candidates on the grounds of the longer assessment period and the expected date of the assessment of their application within two months following the submission of the prequalification application.

 

2.     When a contracting authority accepts – considering the prequalification criteria – the prequalification system of another contracting authority as compatible with its own it shall mention this and the name and address of the other contracting authority as well as the acceptance of the other prequalification in the prequalification documentation.

 

3.     The contracting authority shall provide for the prequalification documentation to be available from the publication of the prequalification notice. If an candidate asks for the prequalification documentation to be sent to it the contracting authority or the organisation designated by it shall grant such a request within two working days. The prequalification documentation shall also be sent, if requested, to the Public Procurement Council.

 

Article 218

 

If the contracting authority amends the rules of the prequalification system or the prequalification criteria or the means of certification, it shall publish a new prequalification notice and inform simultaneously and directly in writing those candidates that have already been included in the prequalification list and that have submitted a prequalification application.

 

Article 219

 

1.     Candidates may ask, at any time, for their registration the prequalification list, subject to the presentation of the data and facts specified in the prequalification documentation and the necessary certificates and declaration and other documents.

 

2.     The prequalification applications and the candidates’ prequalification shall be assessed solely on the basis of the prequalification criteria.

 

3.     If a prequalification application is incomplete, the candidate shall be informed of the deficiencies and invited to supply additional information.

 

4.     The contracting authority shall inform the candidate on its decision after the assessment of the application as soon as possible, but not later than 15 days after the decision and, if the application is rejected, on the grounds of the decision as well.

 

5.     If the contracting authority amends the prequalification criteria, those candidates already registered on the prequalification list shall also duly certify their compliance with the new or amended prequalification criteria. The pre-qualified candidates shall be informed to that effect in the information according to Article 218. As for submitted applications under assessment, the contracting authority shall ask the candidates to provide further information to amend the application.

 

6.     The pre-qualified candidate in whose prequalification data or conditions some changes occur shall inform the contracting authority to that effects immediately or within five working days following the occurrence of such changes at the latest. If an amendment results in some pre-qualified candidates’ failure to comply with the new criteria the contracting authority shall remove them from the list.

 

7.     The contracting authority may remove candidates from the prequalification list at its own discretion if the available data point to such candidates’ non-compliance with the prequalification criteria.

 

8.     15 days before their removal from the prequalification list, the contracting authority shall inform in writing the candidates concerned and specify the grounds of the decision. The candidates concerned shall make their comments in writing for the contracting authority within the time limit specified by the contracting authority.

 

9.     The candidates are entitled to legal remedy against the rejection of their applications and their removal from the list. The candidate concerned can resort to the procedure of the Arbitration Committee of Public Procurements [Article 318 (1)].

 

Initiating the procedure, direct invitation to participate

 

Article 220

 

1.     Restricted or negotiated procedures published by means of a prequalification notice are started by sending out the directs invitation to participate. With respect to the starting of the procedure Article 48 (2)–(3) shall apply mutatis mutandis.

 

2.     In such a procedure the contracting authority may invite only those candidates on the prequalification list to submit their applications. The contracting authority shall send the invitation to all candidates simultaneously and in writing (direct invitation to participate).

 

3.     The contracting authority shall sand a direct invitations to participate to each pre-qualified candidate except when the list has been made broken down by the subject of the public procurement or its subgroup. In such cases only the pre-qualified candidates in the appropriate category shall be invited to participate.

 

4.     The contracting authority shall not be required to start the procedure according to the pre-qualification notice if some force-majeure occurring after the publication of the announcement renders it unable to make the contract or to perform under an executed contract. In such cases the contracting authority shall immediately inform in writing the pre-qualified candidates and the Public Procurement Council.

 

5.     The contracting authority may apply another procedure to be announced to the public procurement specified in the prequalification procedure especially when the number of pre-qualified candidates does not ensure genuine competition. In such cases the contracting authority shall refer to this fact in the new announcement and shall inform the pre-qualified candidates simultaneously and in writing of the publication of the new announcement immediately after the publication.

 

Article 221

 

1.     The direct invitations to participate shall contain at least the following:

 

(a)   name, address, phone and fax number (e-mail) of the contracting authority;

 

(b)   if need be, the data under point a) of the organisation designated by the contracting authority, which is responsible for distributing documentation, technical specifications for public procurement (Article 191) and additional (interpretative) information;

 

(c)   the type of procurement procedure (restricted or negotiated);

 

(d)   the object and quantity of the procurement (including buy options);

 

(e)   the specification of the contract;

 

(f)    the term of the contract or the performance deadline;

 

(g)   the place of performance;

 

(h)   if needed, the list of certificates, declarations and documents to be enclosed with the application which certify that the pre-qualified candidate is not under disqualification in the application phase;

 

(i)    if need be, requirements concerning the specific contract more stringent than the prequalification criteria and what is specified in Article 69 (2);

 

(j)    whether the correction of deficiencies is allowed or prohibited;

 

(k)   the application deadline;

 

(l)    the address the application to participate is to be sent to;

 

(m)  the language(s) of the application;

 

(n)   the place and time of the opening of the applications;

 

(o)   those entitled to attend the opening of the applications;

 

(p)   the date and time of announcing the winners of the application phase;

 

(q)   the planned date of sending the invitation to tender;

 

(r)    the assessment criterion of tenders according to Article 57 (2);

 

(s)    the method, place and financial requirements of collecting the documentation;

 

(t)    reference to the prequalification notice and the date of publication;

 

(u)   the date of sending the direct invitations to participate.

 

2.     If there are many pre-qualified candidates, the contracting authority may specify in the direct invitations to participate the number or range of tenderers with declaring that invitations to tender will be sent only to a specified number of candidates having submitted suitable and valid applications or to a number up to the range.

 

 

 

 

Article 222

 

As a general rule, the time limit to submit applications to participate shall not be less than thirty-seven days from sending the direct invitation to participate. The application deadline may exceptionally be shortened to twenty-two days in case of extraordinary urgency, or – if the invitations were sent via fax or electronically – to fifteen days.

 

Article 223

 

Pre-qualified candidates may submit an application to participate and a tender jointly.

 

Invitation to tender

 

Article 224

 

The invitation to tender shall include at least the following:

 

(a)   name, address, phone and fax number (e-mail) of the contracting authority;

 

(b)   reference to the prequalification notice and its day of publication;

 

(c)   the method, place and financial requirements of collecting the documentation, if it is not sent together with the invitation to tender;

 

(d)   the contract evaluation criteria (Article 57) if the direct invitation to participate did not include the details specified in Article 57 (3);

 

(e)   whether the correction of deficiencies is allowed or prohibited;

 

(f)    the tender submission deadline;

 

(g)   the address the tenders are to be sent to;

 

(h)   the language(s) of the tender;

 

(i)    the place and time of opening the tenders;

 

(j)    the persons entitled to attend the tender opening;

 

(k)   the binding period of the tenders (except for negotiated procedures);

 

(l)    for negotiated procedures, the course and rules specified by the contracting authority of the negotiations, and the date and time of the first negotiation;

 

(m)  the date and time of the announcement of the results and the planned date and time of the conclusion of the contract, if not included in the direct invitations to participate;

 

(n)   the date of sending the invitation to tender.

 

Title 17

 

Negotiated procedure without a notice

 

Application of the procedure

 

Article 225

 

1.     The contracting authority may apply a negotiated procedure without prior publication of a notice when

 

(a)   a procedure referred to in Article 180 (3) has been unsuccessful in accordance with Article 92 (a) and Article 115 (a), provided that the conditions of the invitation and the documentation have not changed substantially;

 

(b)   on account of technical characteristics, artistic considerations or the protection of excusive rights the contract can be fulfilled only by a specific organisation or person;

 

(c)   the procurement is required solely for the purpose of research, tests, education or development; this case shall not apply to instances where profit is intended to be made or where the costs of research and development are covered and the latter shall not jeopardise future procurement procedures of the same purpose;

 

(d)   the contract is conclude4d on the basis of a framework agreement entered into under a procedure mentioned in Titles 13–16;

 

(e)   it is indispensable because unforeseeable extraordinary urgency makes the deadlines of the procedures mentioned in Article 180 (3) impossible to meet; the extraordinary urgency shall not, however, arise on account of the contracting authority’s default.

 

2.     Furthermore, the contracting authority may apply a negotiated procedure without prior publication of a notice for the procurement of construction or services if the implementation of a previous construction or services contract requires the procurement of supplementary construction or services because of unforeseeable conditions not specified in the previous contract, provided that the contracting authority cannot separate the supplementary construction or services from the previous contract due to technical or economic reasons or, although the supplementary construction or services could be separated but are indispensable for the implementation of the original construction or services.

 

3.     Furthermore, the contracting authority may apply a negotiated procedure without prior publication of a notice for the procurement of goods if

 

(a)   in the course of a partial replacement or upgrading of a previously procured goods the contract is awarded to the original winning tenderer, and the replacement of the original wining tenderer would result in the procurement of technically incompatible goods or disproportionate technical difficulties in the operation and maintenance;

 

(b)   the goods are listed and procured on a commodity market;

 

(c)   the exceptionally favourable conditions of the procurement are offered for only a short period of time and the consideration is well below the market prices, and these favourable conditions would be lost in another type of procedure;

 

(d)   the goods are procured under exceptionally favourable conditions in the course of liquidation, final settlement procedure, Court warrant or a similar process connected to the personal right of the organisation concerned.

 

4.     Furthermore, the contracting authority may apply a negotiated procedure without prior publication of a notice for the procurement of construction if the contract is made with a previous winning tenderer for a construction project identical or similar to the original one, provided that the new construction is linked to the original project the contract for which was made under a procedure referred to in Article 180 (3) and the contracting authority has indicated in the notice starting or announcing the original project that it may resort to a procedure without a notice and the estimated value of the new construction was taken into account in the specification of the estimated value of the original construction (from the point of view of reaching the community threshold).

 

5.     Furthermore, the contracting authority may apply a negotiated procedure without prior publication of a notice for the procurement of services if that procurement is made after a design contest procedure defined in this Chapter and the contract is made with the winner or one of the winners (awarded tenderers) of that contest; in the latter case all the candidates (tenderers) recommended by the assessment panel in the design contest procedure shall be invited to the negotiations.

 

6.           

 

Other applicable rules

 

Article 226

 

Negotiated procedures without a notice shall be governed, mutatis mutandis, by the rules in Chapter IV pertaining to negotiated procedures without an announcement (Title 3, Articles 126–128 and 131–135), according to the provisions of Titles 13 and 17.

 

Article 227

 

1.     Except for cases in Article 225 (1) (e) and (3) (b) and (d), the negotiated procedure is started by sending out the invitation to tender.

 

2.     In instances in Article 225 (1) (a) and (c) the contracting authority shall invite at least three tenderers if possible.

 

3.     At the beginning of a negotiated procedure the invitation to tender and a memorandum listing the names and addresses of the invitees as well as the reasons for a negotiated procedure shall be sent via fax or e-mail or directly to the Arbitration Committee of Public Procurements.

 

4.     The deadline for submitting the tenders shall be so set as to leave sufficient time to prepare suitable tenders.

 

5.     In the case of negotiated procedures according to Article 225 (5), the tenders shall be assessed solely with a view to selecting the altogether most advantageous tender [Article 57 (2) (b)].

 

Article 228

 

1.[63]  In negotiated procedures under Article 225 (1) (e) the negotiation shall be conducted and the contract be concluded with such a tenderer that is able to implement the contract within the time limit dictated by the extraordinary conditions. In such cases, the tenderer shall declare that the grounds of exclusion do not apply to it, furthermore, it shall attach the official certifications related to the absence of public debts specified in Article 60 (1) (e) and Article 61 (2) no later than within thirty days following the conclusion of the contract. The existence of the condition in point (g) of Article 60 (1), in cases pertaining to the scope of Act LXXV of 1996 on labour health and safety control, shall be controlled by the contracting authority according to the data published by the labour safety authority[64].

 

2.     The Arbitration Committee of Public Procurements shall be immediately informed via fax or e-mail of the starting of the procedure. The information shall be made in accordance, mutatis mutandis, with Article 227 (3) and Article 133 (1).

 

Article 229

 

1.     In a negotiated procedure under Article 225 (3) (c), the contracting authority shall send via fax or e-mail the invitation to tender immediately after being informed of the favourable conditions to the tenderer offering the favourable conditions and (if possible) to at least two other tenderers. The negotiations shall be conducted and the contract with the winner, contrary to the stipulations of Article 99 (2) be concluded in writing during the validity of the favourable conditions.

 

2.     The Arbitration Committee of Public Procurements shall be immediately informed via fax or e-mail of the starting of the procedure. The information shall be made in accordance, mutatis mutandis, with Article 227 (3) and Article 133 (1).

 

3.     The contracting authority shall also retain the document offering the favourable conditions, according to Article 7 (2).

 

Article 230

 

On the commencement date of negotiated procedures specified in Article 225 (3) (b) and (d), a memorandum stating the reasons for a negotiated procedure and – in cases in (d) – the name and address of the organisation concerned shall be submitted by the contracting authority without delay via fax or e-mail to the Arbitration Committee of Public Procurements.

 

Article 231

 

1.     The contracting authority shall publish information regarding the success or the failure of the negotiated procedure in a notice based on a template provided in the relevant legislation.

 

2.     The notice shall be dispatched for publication in the Public Procurements Bulletin not later than within five working days from the announcement of results, or the expiry of the deadline for the announcement of results.

 

3.     The notice shall be sent for publication pursuant to Article 184 (1) not later than within five working days from the conclusion of the contract, or, failing this, the expiry of the planned date of the conclusion of the contract.

 

Title 18

 

Framework agreement procedure

 

The two phases of the procedure

 

Article 232

 

1.     Framework agreement procedures consist of two phases. In the first phase the contracting authority (authorities) shall apply an open procedure specified in Title 13 or a restricted or negotiated procedure specified in Titles 14–16 in order to conclude the framework agreement.

 

2.     Under the framework agreement concluded in accordance with paragraph 1 the contracting authority may resort to one or more negotiated procedures without a notice [Article 225 (1) (d)] in order to implement the specific public procurement(s). This second phase of the procedure shall be governed, mutatis mutandis, by the provisions in Article 226 and Title 18.

 

Other applicable rules

 

Article 233

 

1.     The framework agreement procedure shall not be used with the view to restricting competition.

 

2.     The contracting authority shall specify in the announcement starting the first phase of a framework agreement procedure or in the direct invitations to participate the range of those submitting the most favourable tenders according to one of the assessment criteria specified in Article 57 (2), which range shall be the upper limit of the number of tenderers whom a framework agreement will be concluded with. The range shall correspond to the subject of the procurement and the conditions of the procedure and shall ensure genuine competition. The range shall include at least three tenderers.

 

3.     In this procedure Article 90 (2) and Article 199 (3) shall not be applied to the assessment of identical tenders. If there are more identical tenders at the upper limit of the range of those submitting the most favourable tenders, framework agreements with all of such tenderers may be concluded.

 

4.     Framework agreements may be concluded for a maximum of four years.

 

5.     Framework agreements shall include the material conditions of contracts to be concluded within a specified period of time under such framework agreements, especially the subject of the procurement, the extent of consideration and, if possible, the planned quantity of procurements.

 

6.     The framework agreements shall be public, the contents thereof shall be deemed information of public interest, except for the annex mentioned in Article 73 (1), provided that the contents thereof is not in contradiction with Article 96 (3).

 

Article 234

 

1.     Negotiated procedures without a notice are started by sending out in writing and simultaneously the invitation to tender to the tenderer or tenderers with whom a framework agreement was concluded. Other tenderers may not be involved in the procedure. The Arbitration Committee of Public Procurements shall be informed of the commencement of the negotiated procedure in accordance with Article 227 (3).

 

2.     The contracting authority shall not be required to start the negotiated procedure without a notice if some force-majeure occurring after concluding the framework agreement renders it unable to make the contract(s) or to perform under an executed contract. In such cases the contracting authority shall immediately inform in writing the tenderers whom a framework agreement was concluded with and the Public Procurement Council.

 

3.     The contracting authority may apply another procedure to be announced [Article 180 (3)] for the public procurement specified in the framework agreement especially when the framework agreement is concluded for several years and when the number of tenderers whom a framework agreement was made with does not ensure real competition. In such cases the contracting authority shall refer to this fact in the new announcement and shall inform the tenderers with whom a framework agreement was made simultaneously and in writing of the publication of the new announcement immediately after the publication.

 

Article 235

 

1.     The invitation to tender shall include at least the following:

 

(a)   name, address, phone and fax number (e-mail) of the contracting authority;

 

(b)   reference to the notice starting or announcing the first part of the framework agreement procedure and the day of publishing;

 

(c)   reference to the executed framework agreement;

 

(d)   the method, place and financial requirements of receiving the documentation, if it was not sent together with the invitation to tender;

 

(e)   the object and quantity of the procurement;

 

(f)    the specification of the contract to be negotiated;

 

(g)   the term and performance deadline of the contract;

 

(h)   the place of performance;

 

(i)    the conditions of the consideration, reference to the relevant rules of law;

 

(j)    whether the correction of deficiencies is allowed or prohibited;

 

(k)   the contract evaluation criteria (Article 57);

 

(l)    the tender submission deadline;

 

(m)  the address the tenders are to be sent to;

 

(n)   the language(s) of the tender;

 

(o)   the place and time of tender opening;

 

(p)   the persons entitled to attend the tender opening;

 

(q)   the course and rules specified by the contracting authority of the negotiations, and the date and time of the first negotiation;

 

(r)    the date and time of the announcement of the winners and the planned date of the conclusion of the contract;

 

(s)    the date of sending the invitation to tender.

 

2.     The assessment criterion of the tenders shall not be different from what was specified in the first part of the procedure.

 

Article 236

 

1.     The conditions specified in the framework agreement shall not be substantially modified in the invitation to tender, in the tender itself or during the negotiations. If the tenderer modifies its conditions, the modified conditions shall be more favourable than what was offered in the framework agreement. Such modification shall not entail a change in any characteristics or circumstances of the subject or the terms of the contract concluded under the scope of the framework agreement compared to the relevant subject or terms set out in the framework agreement that would not have allowed the adoption of a negotiated procedure without a notice. No modification may change any such condition of the subject of the contract made on the basis of the framework agreement that is a prerequisite of the application of the negotiated procedure without a notice.

 

2.     The negotiations between the contracting authority(s) and the tenderer(s), conducted in the course of a negotiated procedure without a notice, are aimed at reaching an agreement on the contract terms not specified in the framework agreement and providing the contracting authority with the opportunity to conclude the contract with the tenderer offering the most favourable valid offer.

 

Article 237

 

1.     The contracting authority shall publish information regarding the success or the failure of the negotiated procedure without a notice in a notice based on a template determined in the relevant legislation.

 

2.     The notice shall be dispatched for publication in the Public Procurements Bulletin not later than within five working days from the announcement of results, or the expiry of the deadline for the announcement of results.

 

3.     The notice shall be sent for publication pursuant to Article 184 (1) not later than within five working days from the conclusion of the contract, or, failing this, the expiry of the deadline for the conclusion of the contract.

 

4.     The contracting authority may publish information in a notice regarding the success or failure of the negotiated procedure without a notice jointly with the information on the contracts for procurements under the framework agreement. In this later case, the notice on the contracts awarded in the previous quartile under the framework agreement shall be sent within five working days after the last day of the calendar quartile. A separate notice shall not be published on the not complete, first quartile following the award of the framework agreement.

 

Title 19

 

Simplified procedure

 

Article 238

 

1.     The contracting authority may use a simplified contract award procedure for the procurement of services in Annex 4 [Article 161 (5)].

 

2.     The simplified procedure shall be governed, mutatis mutandis, by the provisions of Chapter IV Title 9 (Article 146–152), with the differences in paragraphs (3)–(5). Within the scope of legal services specified in Article 153 the tenderer may also act as set out therein.

 

3.     The contracting authority may send out invitations to tender if the public, openly available and exceptionally favourable conditions of the services are offered only for a short period of time and the consideration is well below the market prices and these favourable conditions would be lost through the application of Article 147 (1). The contracting authority shall send via fax or e-mail the invitation to tender immediately after being informed of the favourable conditions to the tenderer offering the favourable conditions and, if possible, to at least two known tenderers. The contracting authority shall retain the document offering the favourable conditions also according to Article 7 (2). Article 148 (1) shall be applied as appropriate.

 

4.     For technical specifications for public procurement, Articles 190–191, for abnormally low prices Article 196, for the validity of variant (alternative) offers Article 198 shall be applied, and Article 192 may also be applied.

 

5.     The contracting authority must not conclude a framework agreement in a simplified procedure.

 

Title 20

 

Rules governing design contests

 

Article 239

 

1.     If the contracting authority conducts a design contest, the provisions in Chapter IV Title 10 (Articles 154-160) shall be applied, as appropriate, provided that Article 159 (2) shall not be applied, and for dispatching and publishing notices Articles 184-187 shall be applied. Furthermore, Articles 168, 170 and 175 shall be applied to design contests, as appropriate.

 

2.     The contracting authority shall publish the design contest notice and the notice communicating the success or failure of the design contest procedure according to the templates provided in the relevant legislation.

 

 

PART THREE

 

PROVISIONS CONCERNING PUBLIC PROCUREMENTS OF A VALUE REACHING THE NATIONAL THRESHOLD

 

CHAPTER VI

 

GENERAL CONTRACT AWARD PROCEDURE

 

Title 21

 

Scope of application of the chapter

 

General provisions

 

Article 240

 

1.     The organisations (contracting authorities) referred to in Article 241 shall proceed in accordance with this chapter if

 

(a)   the value of their public procurement of the specified subject equals or exceeds the national value thresholds at the commencement of the contract award procedure, and Chapter IV does not apply;

 

(b)   they are conducting a design contest (Title 32), and its value in accordance with Article 244 (2) equals or exceeds the national value thresholds at the commencement of the contract award procedure, and Chapter IV does not apply.

 

2.     In case of works concessions the special rules under Title 29, and in case of service concessions the special rules under Title 30 shall also apply.

 

3.     In cases of services listed in Annex 4, a simplified procedure (Title 31) may be adopted. This procedure shall not apply to services listed in Annex 3. However, if the subject of public procurement is a service that includes services from Annex 3 and Annex 4 respectively, the simplified procedure shall apply, provided that at the commencement of the contract award  procedure the value of the service listed in Annex 4 exceeds the value of the service listed in Annex 3.

 

4.     Chapter VII shall apply if the contract award procedure or the design contest is related to the sectors and activities identified therein, including the exceptions set out in Chapter V.

 

Contracting authorities

 

Article 241

 

For the purposes of this chapter, contracting authorities are:

 

(a)   contracting authorities defined in Article 22 (1), except for the authorities specified in Article 22 (4);

 

(b)   in respect of public contracts to be implemented using aid/support, organisations not falling under point a – except individual entrepreneur and one-man companies –, whose public contracts pursuant to this Chapter are subsidised from budgetary sources or EU funds provided directly by one or more organisations specified in point a, exceeding 50% of the value of the relevant contract;

 

 (c)  organisations that do not fall under point (a) for whose payment obligation the Government has provided a joint and several guarantee in accordance with the Act on Public Finances, if the procurement to be carried out using funds obtained by way of a guarantee is considered public procurement in accordance with this chapter, and the extent (or amount) of the guarantee equals or exceeds the national value thresholds.

 

Subjects of public procurement

 

Article 242

 

1.     The subjects of public procurement may be public supply, public works contract, construction works concession, service contract and service concession.

 

2.     Article 24 shall apply to public supplies with the derogation that the acquisition of the title, or the right for the use or exploitation with or without an option to purchase real property, of a real property by the contracting authority shall also be considered public supply.

 

3.     To public works contracts Article 25 (1), to construction works concessions Article 26, while to service orders Article 27 shall apply. Article 28 shall also apply.

 

4.     Service concession involves contracting for services where the consideration from the contracting authority comprises the transfer for a specific period of time of the right to exploit commercially the provision of the relevant services or the transfer of this right together with a financial consideration.

 

Exceptions

 

Article 243

 

Article 243 The procedure in accordance with this Chapter shall not apply

 

a)    to the exceptions listed in Article 29, subject to the terms and conditions set out therein;

 

b)    to the procurement of textbooks, if it is carried out in accordance with the Act on the Rules for the Textbook Market, in the framework of the supply of textbooks to schools and the textbook is registered in the textbook register;

 

c)     to the procurement of goods and services for the full services provided on the basis of Act XXXI of 1997 on the protection of the child and on guardianship administration for children situated in children’s homes and apartment homes, for those who receive post-operation treatment and for the full supply of persons living in residential homes according to the provisions of Act III of 1993 on social administration and social benefits;

 

d)    to the acquisition of immobile property preceding an expropriation or to the exchange of immobile property, and to cases when the transfer of right to the title or the right to use or commercially exploit an immobile property are provided by law in the way of competitive dialogue, competition or open tender, and to cases when the acquisition of the immobile property is conducted through the option for first rejection in accordance with legislation;

 

e)     to the purchase conducted through crisis management for humanitarian aid within foreign affairs assistance about which the competent committee of the Parliament has made a preliminary decision excluding the application of this Act.

 

National thresholds

 

Article 244

 

1.     For the purposes of this chapter, from 2006 onwards the national thresholds applicable to public supply, public works contracts, works concession, contracting for services and service concessions shall be determined by the annual Act on Budget.

 

2.     For the purposes of this chapter (Title 32), the threshold applicable to design contests shall be

 

(a)   the threshold determined for contracting for services, provided that the design contest procedure results in contracting for a service;

 

(b)   the threshold determined for the service order in the case of each design contest whose tender fees and the total fees payable to tenderers is equal to or greater than this threshold.

 

3.     The national thresholds are published by the Public Procurement Council in the Public Procurement Bulletin.

 

Value of public procurement

 

Article 245

 

1.     The value of public procurement shall mean the highest full consideration, generally requested or quoted for the subject of the contract award procedure for the at the commencement of the contract award procedure, excluding value-added tax and calculated in accordance with the provisions of Articles 36–40 and paragraph 2 (estimated value).

 

2.     If the subject of the contract is the acquisition of a right for the use or exploitation of a real property, Articles 36–37 shall apply as appropriate to establishing the estimated value.

 

3.           

 

4.     The commencement of the contract award procedure means the dispatch date of the notice launching the contract award procedure, or the date when the invitations to tender are sent out in cases of negotiated procedures without a notice and in certain specific cases of simplified procedures, or in certain cases the commencement date of the negotiations .

 

5.     If according to 40 (2) the aggregate value of the subjects of procurements whose individual value is lower than the national value threshold requires a public procurement process in accordance with this chapter, then the procurement in the framework of several public procurement processes in accordance with this chapter of subjects of procurement whose value has been aggregated shall not be considered bypassing this law.

 

6.     If the provisions of Article 40 (2) were not taken into consideration when calculating the estimated value, then contracts for the subjects of public procurement in accordance with this chapter that are to be procured in the relevant fiscal year or financial year shall only be concluded following the contract award procedure in accordance with this chapter, irrespective of their value.

 

Title 22

 

General rules of public procurement

 

Types of public procurement

 

Article 246

 

1.     The contract award procedure may be an open, restricted or negotiated procedure, or a competitive dialogue. A negotiated procedure or a competitive dialogue can only be used if permitted by this Chapter.

               

2.     In the open and restricted procedures, the contracting authority is bound by the terms and conditions specified in the notice and in the documentation, while the tenderer is bound by its tender, barring the exceptions listed in Article 254. Negotiations in open and restricted procedures are not allowed, except for the case described in Article 254.

 

3.     Contracting authorities may also adopt a framework agreement procedure (Title 28)

 

 4.[65]  The contracting authority may set up and operate a dynamic purchasing system, the purpose of which is to pre-select those who are entitled to participate in the procedures to be conducted in order to realise certain public procurements. The detailed rules pertaining to the dynamic purchasing system shall be determined in a separate act of legislation.

 

5.     Changing over from one type of procedure to another is not allowed during the contract award procedure.

 

6.     If the open, restricted or negotiated procedure or the competitive dialogue fails, the contracting authority shall make a decision on issuing another invitation to tender in accordance with the relevant rules applicable to the various types of procedure, except if the contracting authority no longer wishes to implement the public procurement.

 

7.     To all other aspects of open, restricted and negotiated procedures and competitive dialogues the rules set out in Chapter IV shall apply, unless otherwise provided for in this Chapter.

 

 

Preliminary information

 

Article 247

 

1.     The contracting authority may prepare, as soon as possible after the beginning of the budgetary year, a prior information notice for the plans for the year in question or for the next period of no longer than twelve months:

 

(a)   all public supply (that do not fall within the scope of exceptions and whose value is equal or greater than the nation value threshold), provided that the aggregated estimated value (Article 245) of such public supply is lower than the relevant Community value threshold;

 

(b)   all service contracts (that do not fall within the scope of exceptions and whose value is equal or greater than the nation value threshold), provided that the aggregated estimated value (Article 245) of such service orders is lower than the relevant Community threshold.

 

2.     The contracting authority may prepare a prior information notice about the key attributes of the planned public works contracts, provided that the estimated value of such public works contracts (Article 245) is lower than the relevant Community threshold. The information notice shall be prepared as soon as possible after the decision concerning the implementation of the planned public works contracts.

 

3.     The prior information notice may also be prepared either for each separate subject of the public procurement or comprehensively.

 

Article 248

 

1.     The contracting authority may publish the prior information notice in an advertisement. The advertisement must be drawn up in accordance with the template provided for in the relevant act of legislation. The contracting authority may publish the advertisement containing the prior information notice, drawn up in accordance with the standard form provided for in the relevant legislation, on its homepage. The publication of the advertisement on the homepage shall take place only after the dispatch of the advertisement by electronic means to the Public Procurement Council. In the event of publishing the advertisement on the homepage, the date of publishing shall be the governing date with regard to the legal effects related to the advertisement.

 

2.     The publication of the advertisment containing the prior information notice does not entail the obligation for conducting the procedure with respect to the public procurement specified therein, and furthermore the contracting authority is also entitled to conduct procedures with respect to public procurements not published in such a notice.

 

Sending and publication of notices

 

Article 249

 

1.     For the purposes of this chapter, the publication of a notice means publication in the Official Journal of the Public Procurement Council, the Public Procurement Bulletin (hereinafter referred to as ‘Public Procurement Bulletin’).[66]

 

2.     The contracting authority shall send the notice to (the Secretariat of) the Council for Public Procurements as soon as possible and in the most appropriate manner. In the case of an accelerated procedure (Title 27), the notice shall be sent by fax or electronically.

 

3.     The Public Procurement Council shall publish the notice within twelve days following its dispatch; in A case of accelerated procedure, or if the notice has been dispatched electronically in the manner set forth in the relevant legislation, it will be published within five days.

 

4.     The contracting authority must have proof for the date of dispatch.

 

5.     The (Secretariat of the) Public Procurement Council shall examine the notice to ensure that it complies with the legislation applicable to public contract award procedures. For editing advertisements, a fee – the amount of which is specified in the relevant act of legislation – shall be paid.

 

6.     The notices shall be published in their entirety.

 

7.     A summary of the notice or the key aspects thereof may also be published in a foreign language, stipulating that only the text drawn up and dispatched in the language chosen by the contracting authority (original language) shall be considered authentic.

 

8.     The costs of publishing notices in the Public Procurement Bulletin shall be borne by their dispatchers.

 

9.     The detailed rules applicable to sending and publishing notices and the templates of various notices are determined in the relevant legislation.

 

Article 250

 

The contracting authority may also request the publication in accordance with Article 249 (1) and related to a public procurement of its notice to which the publication obligation laid down in this chapter does not apply. However, the publication of such a notice does not entail the adoption of the procedure according to this Chapter.

Article 251

 

The contracting authority may publish notices in accordance with this Chapter [Article 249 (1)] in other ways, but may only do so following the publication of such a notice by the Council for Public Procurements. The notice thus published must not contain other data than those published in the Public Procurement Bulletin, and furthermore it must state the date of its dispatch to the Public Procurement Council.

 

Title 23

 

Open procedure

 

Applicable rules

 

Article 252

 

To open procedures the rules set out in Chapter IV, Title 3 (Articles 48–99) shall apply as appropriate, in accordance with the provisions of Title 23.

 

Article 253

 

1.     Article 48 (2)–(3) shall apply to the publication of the tender notice with the derogation that if the contracting authority or the organisation identified in Article 241 (b) has submitted, or will submit, an application (tender) for aid/support, it may publish the relevant tender notice. This circumstance and the provisions of Article 48 (3) must be communicated to the tenderers in the tender notice (under “Other information”).

 

2.           

 

3.     Pursuant to Article 86 (6), the Public Procurement Council must be notified of any abnormally low tenders declared invalid.

 

4.     Article 98 (3) shall not apply to the publication of the notice communicating the success or failure of the procedure.

 

Article 254

 

1.     Following the tender evaluation in accordance with Article 81 (4), the contracting authority may initiate negotiations if

 

(a)   none of the tenderers, or not even the tenderer having submitted the most advantageous tender on the whole has submitted a tender acceptable considering the financial means available to the contracting authority, or

 

(b)   based on the evaluation carried out in accordance with the assessment criterion in accordance with Article 57 (2) (b), the best tender quotes a higher consideration than the next, maximum of two, tenders.

 

(c)   the evaluation criteria of tenders is the lowest price, and two or more admissible tenders quote identical prices as the lowest price;

 

(d)   the evaluation criteria of tenders are the economically most advantageous, and the most economically advantageous tender cannot be selected by applying Article 90 (2).

 

2.     If the contracting authority initiates negotiations, the tenderers having submitted the three most advantageous tenders shall be invited to negotiate. If less than three tenderers have submitted valid tenders, then both tenderers, or the only tenderer, having submitted valid tenders or a valid tender, shall be invited to negotiate. Tenderers submitting admissible tenders quoting identical prices as the lowest price as specified in paragraph 1 (c), and tenderers submitting admissible tenders with the identical total aggregated scores as specified in paragraph 1 (d) shall be invited for negotiation.

 

3.     All invitations to the negotiations must be sent to the relevant tenderers at the same time, directly and in writing. In the invitation the contracting authority must state the reason for having initiated the negotiations, the procedure for conducting the negotiations and its fundamental rules set out by the contracting authority as well as the first date and timing of the negotiations. In this invitation the contracting authority may also invite the relevant tenderers to submit a new tender within a given time limit, without negotiations.

 

4.     At the same time when such invitation is dispatched, all tenderers must be notified in writing of the fact that the contracting authority has initiated negotiations (a new invitation to tender).

 

5.     The purpose of the negotiations or the new invitation to tender can only be to modify the tender. Tenderers can only submit tenders quoting a lower consideration than the original tenders. If the invited tenderer does not submit another tender, the original tender shall be considered valid. To all other aspects of the negotiations, the provisions of Article 128 shall apply as appropriate.

 

6.     The contract shall be awarded to the tenderer who has submitted the most advantageous valid tender to the contracting authority according to the original assessment criterion in the course of the negotiations, or based on the new or the original tender. Articles 86–88 and 92 shall apply as appropriate.

 

7.     In its written summary of the tender evaluation [Article 93 (2)], and in its notice containing the information concerning the outcome of the procedure, the contracting authority must also provide information about having initiated negotiations, and the outcome of such negotiations.

 

 

Title 24

 

General rules applicable to two-stage procedures

 

Applicable rules

 

Article 255

 

1.     Tow-stage procedures are the restricted procedures and negotiated procedures launched by the publication of a notice.

 

2.     To two-stage procedures the rules of Chapter IV, Title 4 (Articles 100–121) shall apply as appropriate, in accordance with the provisions of Title 24. Article 253 (1) shall apply, except that tender notice shall be replaced by invitation to participate.

 

3.    

 

4.     The contracting authority shall publish the successful or unsuccessful outcome of the participation stage in a notice drawn up in accordance with the template provided in the relevant legislation specified in a specific law. The notice must be dispatched within five working days following the announcement of the results or the expiry of the time-limit for announcement of the results. Article 118 (2)–(3) shall not apply.

 

Title 25

 

Restricted procedure

 

Applicable rules

 

Article 256

 

1.     In respect of restricted procedure, the rules set out in Chapter IV, Title 5 [Articles 122–213, including Article 41 (5)] shall apply as appropriate, in accordance with the provisions of Title 25.

 

2.           

 

3.     Negotiations in the tendering stage of a restricted procedure may be initiated in accordance with Article 254. Article 253 (3)-(4) shall also apply.

 

 

Title 25/A

 

COMPETITIVE DIALOGUE

 

Article 256/A

 

Article 256/A The provisions of Chapter IV Title 5/A shall apply for the competitive dialogue with the exception that for dispatching and publishing notices the provisions of Articles 249-251 shall be applied as appropriate.

 

 

Title 26

 

Negotiated procedure

 

Applicable rules

 

Article 257

 

1.     To negotiated procedures commencing with the publication of a notice the rules set forth in Chapter IV, Title 6 [Article 124, Articles 126-130, including Article 41 (5)], while to negotiated procedures without the prior publication of a tender notice the rules set out in Chapter IV, Title 6 [Articles 125–128, Articles 131–135 and Article 41 (5)] shall apply as appropriate, in accordance with the provisions of Title 26.

 

2.     The contracting authority may adopt a negotiated procedure without the prior publication of a tender notice in cases other than those identified in Article 125 if

 

(a)   the purpose of the public procurement is to acquire the title or the right to use or commercially exploit a real property;

 

(b)[67]       

 

(c)   the procurement is public, openly accessible and the exceptionally favourable conditions of the procurement are offered for only a short period of time and the consideration is well below the market prices, and these favourable conditions would be lost in another type of procedure.

 

3.     In a negotiated procedure without the publication of a notice in accordance with paragraph 2 (a) at least three tenderers must be invited to tender whenever possible, except when only a specific real estate lot is adequate for accomplishing the objective of the public procurement. The Arbitration Committee of Public Procurements shall be notified in accordance with Article 129. The contracting authority may adopt a negotiated procedure with the prior publication of a tender notice, according to the rules applicable to such procedures.

 

4.     According to the provisions set out in Article 125 (2) (a) applicable to negotiated procedures, the Public Procurement Council shall be informed. In the event of negotiated procedures Article 253 (1) and (3)-(4) shall also apply as appropriate.

 

5.     In a negotiated procedure without the prior publication of a tender notice specified in paragraph 2 (c) the contracting authority shall send by fax or by electronic means an invitation to tender immediately after being informed of the favourable conditions to the tenderer offering the favourable conditions and if possible to at least two other known tenderers. The negotiations shall be conducted and the contract with the winner, in spite of the prescriptions of Article 99 (2) shall be concluded in writing during the validity of the favourable conditions. Contracting authorities shall retain the documents offering the favourable conditions as set out in Article 7 (2).

 

Title 27

 

Accelerated procedure

 

Applicable rules

 

Article 258

 

1.     To accelerated procedures the rules set out in Chapter IV, Title 7 (Article 136) shall apply as appropriate, in accordance with the provisions of Title 27.

 

2.     The contracting authority may adopt an accelerated procedure in a restricted procedure or a negotiated procedure launched with the publication of a tender notice if the time limits fixed for such procedures [Article 107 (1), Article 122] cannot be complied with due to extraordinary urgency. The contracting authority shall give the reasons for applying the accelerated procedure in the notice launching the procedure.

 

Title 28

 

Framework agreement procedure

 

The two stages of the procedure

 

Article 259

 

The provisions of Chapter IV Title 7/A shall be applied for the framework agreement with the exception that the provisions of Articles 249-251 shall be applied, as appropriate for dispatching and publishing notices.

 

Other applicable rules

 

Article 260-264

 

Title 29

 

Special rules pertaining to public works  concession

 

Applicable rules

 

Article 265

 

1.     To construction works concession, the rules set out in Chapter IV (Title 8) shall apply as appropriate, in accordance with the provisions of Title 29.

 

2.     Article 141 (b) specifying the time limit to submit tenders (in open procedures) and specifying the time limit for participation shall be applied with the exception, that the time limit to submit tenders (in open or restricted procedures) may be reduced by a further five days, provided that the contracting authority offers free-of-charge and full direct access by electronic means to the tender specifications for the tenderers from the date of  publishing the tender notice in the case of open procedures, and from the date of dispatching the invitation to tender in the case of restricted procedures, and specifies in text of the tender notice or in the invitation to tender the internet address at which this documentation is available.

 

3.     The stipulations of Articles 143-144 shall not be applicable to works concessions equalling or exceeding the national threshold instead of the Community threshold, either. Article 140 (5) shall not apply.

 

4.     In the case of a construction works concession, Article 253 (1), (3)–(4) and Article 255 (4) shall also apply, and Article 254 may be applied. A framework agreement procedure may also be adopted.

 

Title 30

 

Special rules for service concessions

 

Applicable rules

 

Article 266

 

In case of service concessions awarded for services specified in Annex 3 and Annex 4 the rules set forth in Chapter IV and Titles 23-26 shall apply as appropriate, according to the provisions of Title 30.

 

Article 267

 

1.     The contracting authority shall specify in the notice starting the procedure the type of public contract award procedure applied. The notice shall be drawn up according to the rules applicable to the tender notice or the invitation to participate, applied as appropriate to the relevant procedure. An accelerated or framework procedure may also be applied.

 

2.     The contracting authority may adopt a negotiated procedure launched by the publication of a notice other than specified in Article 124 (2). The contracting authority shall adopt a negotiated procedure without a notice only pursuant to Article 125 (1), (2) (a)-(b) or 3 (a).

 

(3)          

 

4.     If the service concession also falls under the scope of the Concession Act, the contracting authority shall act in accordance with the Concession Act, and shall in addition immediately notify the Council for Public Procurement thereof in writing.

 

5.     If the service concession also falls under the scope of the Act on scheduled passenger transport by means of buses, the contracting authority shall act accordingly, and shall immediately notify the Public Procurement Council thereof in writing.

 

Title 31

 

Simplified procedure

 

Applicable rules

 

Article 268

 

1.     In case of ordering services listed in Annex 4 [Article 240 (3)], the contracting authority may adopt a simplified contract award procedure in accordance with Chapter IV, Title 9 (Articles 145–153), with derogations pursuant to paragraphs 2–3.

 

2.     Pursuant to Article 86 (6), the Public Procurement Council must be notified of any abnormally low tenders declared invalid.

 

3.     The contracting authority must publish a notice about the outcome of the procedure in accordance with the template provided in the relevant legislation. This notice must be published within five working days following the announcement of the results or the expiry of the time-limit for the announcement of the tender results. The publication of such notices means the publication as defined in Article 249 (1).

 

Article 269

 

1.     Within the scope of legal services specified in Article 153 the tenderer may also act as set out therein, save for the derogation according to paragraph 2.

 

2.     The contracting authority shall publish an information notice about the conclusion of the contract, drawn up according to the template provided in the relevant legislation. The notice shall be dispatched within five working days following the conclusion of the contract. Publication of the notice shall be interpreted as defined in Article 249 (1).

 

Title 32

 

Rules applicable to design contests

 

Applicable rules

 

Article 270

 

1.     If the contracting authority is conducting a design contest procedure, then it shall proceed in accordance with the provisions of Chapter IV, Title 10 (Articles 154–160), with derogations pursuant to paragraphs 2–3.

 

2.     For the sending and publication of notices the provisions of Articles 249-251 shall apply as appropriate. The notices must be drawn up in accordance with the template provided in the relevant legislation.

 

3.     To design contest procedures Article 245 shall also apply as appropriate.

 

CHAPTER VII

 

SPECIAL CONTRACT AWARD PROCEDURE APPLICABLE TO CERTAIN ORGANISATIONS OPERATING IN THE WATER, ENERGY, TRANSPORT AND TELECOMMUNICATION SECTORS

 

Title 33

 

Scope of application of the chapter

 

General provisions

 

Article 271

 

1.     The organisations identified in Article 162 (contracting authorities) shall proceed according to this Chapter if

 

(a)   the value of their public procurements of the specified subject-matter equals or exceeds the national threshold at the commencement of the public contract award procedure, and Chapter V is not applicable;

 

(b)   they are conducting a design contest (Title 42) whose value according to Article 273 (2) equals or exceeds the national thresholds at the commencement of the procedure, and Chapter V is not applicable.

 

2.     This Chapter shall apply, when the subject-matter of the public procurement is related to one or more activities - specified in Article 163 - of the contracting authority and also to other activities, but the subject-matter of the public procurement is required primarily for providing activities specified in Article 163.

 

3.     Chapter VI shall apply, when the subject of the public procurement is related to one or more activities - specified in Article 163 - of the contracting authority and also to other activities, and it cannot be established for the provision of which activity the public procurement is required primarily, or the subject-matter of the public procurement cannot be divided by its nature, or in the event of dividing it into parts it cannot be used properly, provided that the contracting authority is regarded as a contracting authority in accordance with Article 162 (1) (a) as well.

 

4.     This Chapter shall apply as well, when the subject-matter of the public procurement is related to one or more activities - specified in Article 163 - of the contracting authority and also with other activities not under the provisions of Chapter VI, and it cannot be established for the provision of which activity the public procurement is required, or the subject-matter of the public procurement cannot be divided by its nature, or in the event of dividing it into parts it cannot be used properly.

 

5.     In cases of services identified in Annex 4, a simplified procedure (Title 41) may be adopted. This procedure shall not be adopted to services listed in Annex 3. However, if the subject of public procurement is a service that includes a service from both Annex 3 and Annex 4 respectively, a simplified procedure shall be adopted, provided that at the commencement of the public contract award procedure the value of the service listed in Annex 4 does not exceed the value of the service listed in Annex 3.

 

6.     In procedures described in this chapter, the rules set out in Chapter V, including the exceptions specified in Chapter V, shall apply as appropriate, in accordance with the provisions of Chapter VII.

 

Article 272

 

National thresholds

 

Article 273

 

1.     For the purposes of this chapter, from 2006 onwards the national value thresholds applicable to public supply, public works contracts, construction works concession and service contracts shall be determined by the annual Act on Budget.

 

2.     For the purposes of this chapter (Title 42), the threshold applicable to design contests shall be

 

(a)   the value threshold determined for the service order, provided that the design contest procedure results in ordering a service;

 

(b)   the value threshold determined for the service order in the case of every design contest whose tender fees and the total fees payable to tenderers equals or exceeds this value threshold.

 

3.     The national value thresholds are published by the Public Procurement Council in the Public Procurement Bulletin.

 

 

 

 

 

 

 

Value of public procurement

 

Article 274

 

1.     To the value of the public procurement (estimated value), Article 179 (1)–(3) shall apply.

 

2.     If according to 40 (2) the aggregated value of the subjects of procurement whose individual value is lower than the national value threshold requires a public procurement process in accordance with this chapter, then the procurement in the framework of several public procurement processes in accordance with this chapter of subjects of procurement whose value has been aggregated shall not be considered bypassing of this law.

 

3.     If the provisions of Article 40 (2) were not taken into consideration when calculating the estimated value, then contracts for the subjects of public procurement in accordance with this chapter that are to be procured in the relevant fiscal year or in the relevant twelve months shall only be concluded following the contract award procedure in accordance with this chapter, irrespective of their value.

 

Title 34

 

General rules of special contract award procedure

 

Types of public procurement

 

Article 275

 

1.     The contract award procedure may be an open, restricted or negotiated procedure. Negotiated procedure without the prior publication of a tender notice can only be adopted in special cases.

 

2.     In the open and restricted procedures, the contracting authority is bound by the terms and conditions specified in the notice and in the tender specifications, while tenderers are bound by their tender. Negotiations in open and restricted procedures are not allowed. The case described in Article 283 in an open procedure forms an exception from this rule.

 

3.     According to the type of the notice, the contract award procedure may be an open procedure launched by a tender notice , a restricted or negotiated procedure launched by a notice containing an invitation to participate, a restricted or negotiated procedure launched by a periodic indicative information notice, or a restricted or negotiated procedure launched by prequalification notice.

 

4.     The contracting authorities may also adopt a framework agreement procedure (Title 40).

 

5.[68]  The contracting authority may set up and operate a dynamic purchasing system, the purpose of which is to pre-select those who are entitled to participate in the procedures to be conducted in order to realise certain public procurements. The detailed rules pertaining to the dynamic purchasing system shall be determined in a separate act of legislation.

 

Notification in advance

 

Article 276

 

1.     The contracting authority may prepare, as soon as possible after the beginning of the budgetary year, a periodic indicative information notice for the next period of no longer than twelve months:

 

(a)   all public supplies (that do not fall within the scope of exceptions and whose value equals or exceeds the nation value threshold), provided that the aggregated estimated value (Article 274) of such public supplies is lower than the relevant Community value threshold;

 

(b)   all service orders (that do not fall within the scope of exceptions and whose value is equal or greater than the nation value threshold), provided that the aggregated estimated value (Article 274) of such service orders is lower than the relevant Community value threshold.

 

2.     The contracting authority may prepare an indicative summary information notice about the key attributes of the envisaged public works contracts, provided that the estimated value (Article 274) of such public works contracts is lower than the relevant Community value threshold. The information notice shall be prepared as soon as possible after the decision concerning the implementation of the planned public works contracts.

 

3.     The information notice may also be prepared separately for each subject of the public procurement or comprehensively.

 

Article 277

 

1.     The contracting authority may publish the indicative summary information notice in a notice. The notice must be prepared in accordance with the template provided in the relevant legislation, and must be dispatched by the expiry of the time-limit specified in Article 276 (1) and (2). The contracting authority may publish the indicative consolidated information advertisement on its homepage; and shall immediately notify the Public Procurement Council thereof. The publication of the advertisement on the homepage shall take place only after the dispatch of the notice to the Public Procurement Council. The advertisement must be drawn up in accordance with the template provided in the relevant legislation.

 

2.     The publication of the notice containing the indicative summary information notice does not entail the obligation for conducting the procedure with respect to the public procurement specified therein, and furthermore the contracting authority is also entitled to conduct procedures with respect to public procurements not published in such a notice.

 

Sending and publication of notices

 

Article 278

 

1.     For the purposes of this chapter, the publication of a notice shall mean publication in the Official Journal of the Public Procurement Council, the Public Procurement Bulletin (hereinafter referred to as ‘Public Procurement Bulletin’).[69]

 

2.     The contracting authority shall send the notice to (the Secretariat of) the Public Procurement Council as soon as possible and in the most appropriate manner.

 

3.     The Public Procurement Council shall publish the notice within twelve days following its dispatch; in case the notice is sent electronically in the manner specified in the relevant legislation, or within five days in exceptional cases at the request of the contracting authority if the tender notice or invitation to participation (Article 189 and Article 202) is dispatched by fax .

 

4.     The contracting authority must have proof for the dispatch date.

 

5.     The (Secretariat of the) Public Procurement Council shall examine the notice sent by the contracting authority to ensure that it complies with the legislation applicable to public procurement. For editing advertisements a fee - the amount of which is specified in a separate act of legislation - shall be paid.

 

6.     The notices shall be published in their entirety.

 

7.     A summary of the notice or the key aspects thereof may also be published in a foreign language, stipulating that only the text prepared and sent in the language chosen by the contracting authority (original language) shall be considered authentic.

 

8.     The costs of publishing notices in the Public Procurement Bulletin shall be borne by their dispatchers.

 

9.     The detailed rules applicable to sending and publishing notices are set forth and the templates for the various notices are provided in the relevant legislation.

 

Article 279

 

The contracting authority may also request the publication of its notice in accordance with Article 278 (1) and related to a public procurement to which the publication obligation laid down in this chapter does not apply. However, the publication of such a notice does not entail the adopting of the procedure according to this chapter.

 

Article 280

 

The contracting authority may publish notices in accordance with this Chapter (Article 278 (1)) elsewhere, but can only do so following the publication of such a notice by the Public Procurement Council. The notice thus published must not contain other data than those published in the Public Procurement Bulletin, and furthermore it must state its dispatch date to the Public Procurement Council.

 

Title 35

 

Open procedure

 

Applicable rules

 

Article 281

 

To open procedures the rules set out in Chapter V, Title 13 (Articles 188–200) shall apply as appropriate, in accordance with the provisions of Title 35.

Article 282

 

1.     Article 195 shall apply for specifying the time limit to submit tenders, as appropriate.

 

2.     The Public Procurement Council must be notified of any abnormally low tenders declared invalid [Article 196 and 86 (6)].

 

3.     Article 200 (3) shall not apply to the publication of the information notice communicating the success or failure of the procedure.

 

Article 283

 

1.     Following the tender evaluation in accordance with Article 81 (4), the contracting authority may initiate negotiations if

 

(a)   none of the tenderers, or not even the tenderer having submitted the most favourable tender on the whole has submitted a tender acceptable considering the financial means available to the contracting authority, or

 

(b)   based on the evaluation carried out in accordance with the assessment criterion in accordance with Article 57 (2) (b), the best tender quotes a higher consideration than the maximum two second best tenders, including the scenario outlined in Article 199.

 

(c)   the evaluation criteria of tenders is the lowest price, and two or more admissible tenders quote identical prices as the lowest price;

 

(d)   the evaluation criteria of tenders is the most economically advantageous, and the economically most advantageous tender cannot be selected by applying Article 90 (2).

 

2.     If the contracting authority initiates negotiations, the tenderers having submitted the first three best tenders shall be invited to negotiate. If less than three tenderers have submitted valid tenders, then both tenderers, or the only tenderer, having submitted valid tenders shall be invited to negotiate. Tenderers submitting admissible tenders quoting identical prices as the lowest price as specified in paragraph 1 (c), and tenderers submitting admissible tenders with identical total aggregated scores as specified in paragraph 1 (d) shall be invited for negotiation.

 

3.     All invitations to the negotiations must be sent to the relevant tenderers simultaneously, directly and in writing. In the invitation the contracting authority must state the reason for having initiated negotiations, the procedure for conducting the negotiations and its rules set out by the contracting authority as well as the first date and timing of the negotiations. In this invitation the contracting authority may also invite the relevant tenderers to submit new tenders within a specified time limit, without negotiations.

 

4.     At the same time when such invitation is sent, all tenderers must be notified simultaneously in writing of the fact that the contracting authority has initiated negotiations (a new invitation to tender).

 

5.     The purpose of the negotiations or the new invitation to tender can only be to modify the tenders. The tenderer may only submit a tender which is more favourable to the contracting authority in terms of consideration than that quoted in the original tender. If the invited tenderer does not submit another tender, the original tender shall be considered valid. To all other aspects of the negotiations, the provisions of Article 128 shall apply as appropriate.

 

6.     The contract shall be awarded to the tenderer who has submitted the most advantageous valid tender to the contracting authority according to the original assessment criterion in the course of the negotiations, or based on the new or the original tender. Articles 87–88,192,  196–197 and 199 shall apply.

 

7.     In its written summary of the tender evaluation (Article 93 (2)), and in its information notice concerning the success or failure of the procedure, the contracting authority must also provide information about having initiated negotiations as well as about the outcome of such negotiations.

 

Title 36

 

Restricted and negotiated procedures launched by a notice containing an invitation to participate

 

Applicable rules

 

Article 284

 

1.     To restricted and negotiated procedures launched by a notice containing an invitation to participate the rules of Chapter V, Title 14 (Articles 201–206) shall apply as appropriate, in accordance with the provisions of Title 36. Article 282 (2) and (3) shall also apply.

 

2.           

 

3.     The contracting authority shall publish the outcome of the participation stage in a notice drawn up in accordance with the template provided in the relevant legislation. The notice must be dispatched within five working days following the announcement of the results or the expiry of the time-limit for announcement of the results. Article 118 (2)–(3) shall not apply.

 

4.           

 

Title 37

 

Restricted and negotiated procedures announced in a notice containing an indicative periodic information notice

 

Applicable rules

 

Article 285

 

1.     To restricted and negotiated procedure announced in a notice containing an indicative periodic information notice, the rules set out in Chapter V, Title 15 (Articles 207–212) shall apply as appropriate, in accordance with the provisions of Title 37. Article 282 (2) and (3) shall also apply.[70]

 

2.     The contracting authority may employ a restricted or negotiated procedure published in a notice containing a periodical preliminary information package according to this chapter if the estimated value of the planned public procurement(s) published in the notice is lower than the Community value thresholds, also observing to the provisions of Article 37.

 

3.     The contracting authority shall publish the outcome of the participation stage in a notice drawn up in accordance with the template provided in the relevant legislation. The notice must be dispatched within five working days following the announcement of the results or the expiry of the deadline for announcement of the results. Article 118 (2)–(3) shall not apply.

 

Title 38

 

Restricted and negotiated procedures announced in a prequalification notice

 

Applicable rules

 

Article 286

 

1.     To restricted and negotiated procedures announced in a prequalification notice, the rules set out in Chapter V, Title 16 (Articles 213–224) shall apply as appropriate, in accordance with the provisions of Title 38 Article 282 (2) and (3) shall also apply.[71]

 

2.     The contracting authority may employ a restricted and negotiated procedure published in a prequalification notice according to this chapter if the estimated value of the public procurements envisaged for the relevant period is lower than the Community value thresholds, also observing to the provisions of Article 37.

 

3.     If the contracting authority also operates a prequalification system in accordance with Chapter V and this Chapter, then it must keep a separate list of the pre-qualified applicants.

 

4.     The contracting authority shall publish the outcome of the participation stage in a notice drawn up in accordance with the template provided in the relevant legislation. The notice must be dispatched within five working days following the announcement of the results or the expiry of the deadline for the announcement of the results. Article 118 (2)‑(3) shall not apply.

 

 

Title 39

 

Negotiated procedure without the prior publication of a tender notice

 

Applicable rules

 

Article 287

 

1.     To negotiated procedures without a notice, the rules set out in Chapter V, Title 17 (Articles 225–231) shall apply as appropriate, in accordance with the provisions of Title 38. Article 282 (2) and (3) shall also apply.

 

2.     To the employment of a negotiated procedure without the prior publication of a tender notice, Article 225 shall apply as appropriate. The contract award procedures referred to in Article 225 shall mean the procedures described in this chapter.

 

Title 40

 

Framework agreement procedure

 

Applicable rules

 

Article 288

 

1.     To framework agreement procedures, the rules set out in Chapter V, Title 18 (Articles 232–237) shall apply as appropriate, in accordance with the provisions of Title 40.

 

2.     The framework agreement procedure is comprised of two stages. In the first stage, the contracting authority (contracting authorities) must adopt an open procedure in accordance with Title 35 or any restricted or negotiated procedures specified in Titles 36-38, with a view to concluding a framework agreement.

 

3.     Pursuant to the framework agreement concluded in accordance with paragraph 2, the contracting authority may employ a negotiated procedure without the prior publication of a tender notice (Article 225 (1) (d)) for the purpose of implementing the relevant public procurement. To this second stage of the procedure, the rules set out in Article 226 shall apply as appropriate, in accordance with the provisions of Title 18 and 39. Article 237 (3) shall not apply.

 

Title 41

 

Simplified procedure

 

Applicable rules

 

Article 289

 

1.     In the case of ordering services listed in Annex 4 (Article 271 (2)), the contracting authority may employ a simplified contract award procedure in accordance with Chapter V, Title 19 (Article 238), with derogations pursuant to paragraphs 2–3.

 

2.     The Public Procurement Council must be notified of any abnormally low tenders declared invalid [Article 196 and 86 (6)].

 

3.     The contracting authority must publish a notice about the outcome of the procedure in a notice drawn up in accordance with the template provided in the relevant legislation. This notice must be published within five working days following the announcement of the results or the expiry of time-limit for the announcement of the results. The publication of such notices means the publication as defined in Article 278 (1).

 

Article 290

 

1.     Within the scope of legal services specified in article 153, the contracting authority may also act as set out therein, save the derogation according to paragraph 2

 

2.     The contracting authority shall draw up and publish the notice communicating the conclusion of the contract according to the template provided in the relevant legislation. The notice shall be dispatched within five working days from the conclusion of the contract. The publication of the notice shall mean the publication according to Article 278 (1).

 

 

 

Title 42

 

Rules applicable to design contests

 

Applicable rules

 

Article 291

 

1.     If the contracting authority is conducting a design contest procedure, then it shall proceed in accordance with the provisions of Chapter IV, Title 10 (Articles 154–160), with derogations pursuant to paragraphs 2–3. Additionally Articles 168 and 175 and Article 272 (3) shall also apply to design contests as appropriate.

 

2.     Notices shall be sent and published in accordance with the provisions of Articles 278-280 as appropriate. Notices shall be drawn up in accordance with the template provided in the relevant legislation.

 

3.     In the case of a design contest, Article 274 shall also apply as appropriate.

 

PART FOUR

 

PROVISIONS APPLICABLE TO PUBLIC PROCUREMENT BELOW THE NATIONAL VALUE THRESHOLD

 

Title 43

 

Scope of application of Part Four

 

General provisions

 

Article 292

 

1.     The organisations (contracting authorities) referred to in Article 293 shall proceed in accordance with this Part if

 

(a)   the value of their public procurement of the specific subject at the launch of the contract award procedure equals or exceeds the value thresholds set for regular public procurement, and Chapter IV or VI does not apply;

 

(b)   they are conducting a design contest (Title 45), and at the launch of the process its value in accordance with Article 297 (2) is equal to or greater than the value thresholds set for the regular design contest procedure, and Chapter IV or VI does not apply.

 

2.     The organisations referred to in Article 294 shall also proceed in accordance with this Chapter if the value of their public procurements of the specific subject equals or exceeds the national value thresholds at the launch of the contract award procedure, and Chapter IV or VI does not apply.

 

Contracting authorities

 

Article 293

 

For the purposes of this chapter, contracting authorities are:

 

(a)   contracting authorities defined in Article 22 (1), except those defined in Article 22 (4);

 

(b)   in respect of public works to be implemented using aid/support, organisations not under the scope of point (a) – except individual entrepreneurs and companies of self-employed – whose public works specified in this part are subsidised directly by one or more organisations specified in point (a) from budgetary sources or EU funds, exceeding 50% of the value of the relevant contract.

 

Article 294

 

1.     For the purposes of this Part, the contracting authority is an organisation that does not belong to the scope of Article 22 (1), Article 162 (2) and Article 272 (2), and pursues an activity aimed at providing a service pursuant to a special or exclusive right granted by any organisation defined in Article 22 (1), provided that its public purchasing is directly related to pursuing this activity.

 

2.     The public procurement pursued by the contracting authority is directly related to the activity defined in paragraph 1 if the above activity cannot be pursued without the subject-matter of the public procurement. If the subject-matter of the public procurement is used by the contracting authority for the above activity as well as for its other activities and it cannot be physically divided, or cannot be used properly if divided, then the contracting authority shall adopt the procedure set forth in this Part.

 

3.     When granting a special or exclusive right, provisions must be made concerning the procedural obligations pursuant to this chapter, including the provisions of Article 1.

 

Subjects of public procurement

 

Article 295

 

1.     The subject of public procurement may be public supplies, public works contract, and service orders.

 

2.     To supplies Article 24, to public works contracts Article 25 (1), and to service orders Article 27 shall apply. Article 28 shall also be applied.

 

Exceptions

 

Article 296

 

The procedure pursuant to this Part shall not apply to

 

(a)   exceptions set out in Article 29, stipulating that the those set out in Article 29 (1) (a) do not require a preliminary decision;

 

(b)   if only a particular organisation or person is capable of concluding the contract due to certain technical features, artistic considerations or the protection of exclusive rights;

 

(c)   if the simplified procedure cannot be conducted due to an extraordinary urgency arising due to a reason unforeseeable by the contracting authority, but the circumstances justifying such extraordinary urgency must not arise from the fault of the contracting authority;

 

(d)   in the case of public works contracts or service orders if the completion of the relevant public works contracts or service requires additional public works contracts or service orders not included in the original contract and arisen due to unforeseeable circumstances, provided that, due to technical or economic considerations, such additional public works contracts or service cannot be separated from the original contract without causing considerable difficulties to the contracting authority, or the additional public works contracts or service can be separated, but it is essential for the completion of the public works contracts or service; however, the estimated value of the contract(s) concluded for such additional public works contracts or service with the tenderer who was awarded the original contract must not be higher than 50% of the value of the original public works contracts or service;

 

(e)   in case of public supplies, if replacing the contractor who was awarded the original contract with a new contractor for the partial replacement or enhancement of the originally procured item would require the procurement of items which are technically different and not compatible, or such a procurement would result in a disproportionate technical difficulty in the operation and maintenance; however, the aggregated term of contract(s) concluded with the contractor who was awarded the original contract must not exceed three years;

 

(f)    in case of service orders, if it takes place following a regular design contest as described in this Part, and the contracting authority must conclude a contract with the selected winner;

 

(g)   in case of purchasing a service listed in Annex IV;

 

(h)   in case of purchasing a service aimed at the creation of a literary (technical, scientific) work, or involving consulting or personal interpreting activity for the conclusion of the contracting authority’s  core activity;

 

(i)    in case of ordering a services specified in Article 153;

 

(j)[72]         in case of the exception specified in Article 243 (b);

 

(k)[73]        in case of the procurement of goods or services as set out in Article 243 (c);

 

(l)    the procurement is public, openly accessible and the exceptionally favourable conditions of the procurement are offered for only a short period of time and the consideration is well below the market prices, and these favourable conditions would be lost in the procedure specified in Article 299 and Article 300.

 

 

Value thresholds

 

Article 297

 

1.     For the purposes of this Part, from 2006 onwards the national value thresholds applicable to public supplies, public works contracts, public works concessions and service contracts shall be determined by the annual Act on Budget.

 

2.     For the purposes of this Part (Title 45), the value threshold applicable to regular design contest shall be

 

(a)   the value threshold determined for the service order, provided that the design contest procedure results in ordering a service;

 

(b)   the value threshold determined for the service order in the case of each design contest where the total of the tender fees and the fees paid (payable) to tenderers equals or exceeds this threshold.

 

3.     These national value thresholds shall be published by the Public Procurement Council in the Public Procurement Bulletin.

 

Value of public procurement

 

Article 298

 

1.     The value of public procurement means the highest full consideration, generally requested or quoted for the subject thereof at the launch of the contract award procedure, excluding value-added tax and calculated in accordance with the provisions of Articles 36–40 (estimated value).

 

2.     The launch of the contract award procedure shall be the date when the invitation to tender launching the regular contract award procedure is dispatched for publication or sent to tenderers.

 

3.     If according to 40 (2) the aggregated value of the subjects of the procurements whose individual value is less than the value threshold determined in Article 297 calls for a public contract award procedure in accordance with this Chapter, then procuring the subjects of procurements included in the aggregated value in more than one contract award procedure according to this Chapter shall not be considered bypassing this law.

 

Title 44

 

Regular public contract award procedure

 

Article 299

 

1.     In a regular public contract award procedure the contracting authority must

 

(a)   publish the invitation to tender in a notice in the Public Procurement Bulletin (Article 249) if the value of its public procurements under this Part equals or exceeds 50% of the current national threshold as per Chapter VI at the commencement of the public contract award procedure, or

 

(b)   send a written invitation to tender at least to three contractors at the same time if the value of its public procurements under this Part does not reach 50% of the current national threshold as per Chapter VI at the commencement of the public contract award procedure, or

 

(c)   it may also publish the invitation to tender in the Public Procurement Bulletin in the case outlined in point (b).

 

2.     If the public procurement is carried out for a foreign representation, contrary to the provisions set out in paragraph 1 the contracting authority

 

(a)   shall send in writing and at the same time an invitation to tender to at least three bidders,

 

(b)   or may also publish the invitation to tender in the Public Procurement Bulletin.

 

3.     The invitation to tender shall include at least the following details:

 

(a)   the name, address, telephone and fax numbers (and e-mail address) of the contracting authority;

 

(b)   the subject and quantity of the public procurement, the technical specification for public procurement, the quality criteria and the performance requirements ;

 

(c)   a definition of the contract;

 

(d)   the term of the contract or the time-limit of the performance;

 

(e)   the place of performance;

 

(f)    the payment terms and reference to the relevant legislation;

 

(g)   the tender assessment criterion;

 

(h)   the suitability requirements and the provisions of Article 69 (2);

 

(i)    whether the correction of deficiencies is allowed or prohibited;

 

(j)    the time limit for the receipt of tenders;

 

(k)   the address where the tenders must be submitted;

 

(l)    the language(s) of the tender;

 

(m)  the tender opening date and place;

 

(n)   whether negotiations are possible in the course of the procedure or the submitted tenders will be assessed without negotiations;

 

(o)   if it is a negotiated procedure, then the procedure for conducting the negotiations, its rules set out by the contracting authority, and the date and timing of the first meeting;

 

(p)   the planned date and timing of contract conclusion;

 

(q)   the date when the invitation to tender is dispatched or sent.

 

4.     In the invitation to tender the contracting entity may also set out the grounds for disqualification. In this case only the grounds listed in Articles 60–62 can be specified. The tenderer shall make a statement to the effect that no grounds for disqualification are present in his case.

 

5.     The suitability of the tenderer shall be determined in accordance with Articles 66, 67 and 69, stipulating that the contracting authority may also prescribe other objectively defined suitability criteria and methods of certification, but it shall apply the provisions of Article 69 (3) in the verification process as appropriate.

 

 

Article 300

 

1.     If the contracting authority does not receive at least three tenders, it may start the assessment of the received tenders, or without opening the tenders received the contracting authority may issue a new invitation to tender in accordance with Article 299 (1).  The tenderer(s) who submitted a tender for the original invitation must be invited to submit their tender again stipulating that the originally submitted tender may be upheld, provided that the terms and conditions of the invitation to tender have not changed in the intervening time.

 

2.     If the service is ordered following a design contest and the contracting authority must conclude a contract with one of the winners (awarded tenderers) on the basis of the recommendation of the assessment panel, the contracting authority must invite to tender all tenderers recommended by the assessment panel in the design contest procedure. In this case paragraph 1 shall not apply.

 

3.     In the procedure, the contracting authority is bound by the terms and conditions specified in the invitation to tender, while the tenderer is bound by its tender, except for negotiated procedures. However, the negotiations must not result in a change in any attribute or circumstance of the subject of the contract concluded on the basis of the procedure, relative to the subject envisaged to be procured at on the launch of the public procurement [Article 298 (2)], that would not have rendered the employment of the regular contract award procedure possible. Upon the conclusion of negotiations the parties shall be bound by their tenders.

 

4.     On completion of the tender assessment, the contracting authority shall sum up the tenders in writing according to the template provided in the separate act of legislation. This written summary must be sent to all tenderers before the conclusion of the contract. The summary may also be published in the Public Procurement Bulletin.

 

5.     A successful public contract award procedure ends with the conclusion of the contract.

 

6.     In a simple contract award procedure for starting the procedure  Article 48 (2)-(3); for the invitation to tender Article 52; for supplementary information Article 56; for the evaluation criteria Article 57 (1)-(5);  for the tender  Article 70 (1) and Article 73; for the time limit to submit tenders and for the binding period Article 74 (6) and Article 75 (2); for the submission and opening of tenders Articles 79–80; for the assessment of tenders Articles 81–89 and Articles 91–92;  for information on the assessment of tenders Article 97; for the conclusion of the contract  Article 99 (1) and (3)-(4); and in the case of negotiations Article 128 also shall apply accordingly as appropriate, with the tender notice used in the meaning of invitation to tender. In cases of simple public contract award procedures Article 249 shall also apply as appropriate to the dispatch and publication of notices.

 

7.     In simple contract award procedures the provisions in Titles 21–25 and Titles 26–28 of this Act and also the provisions not listed under paragraph 6 of Title 32 of this Act may also apply, as appropriate.

 

Title 45

 

Rules applicable to regular design contest procedure

 

Article 301

 

1.     If the contracting entity is conducting a regular design contest, it shall proceed in accordance with the provisions of Title 45.

 

2.     The detailed rules applicable to regular design contest are determined in the relevant legislation.

 

Article 302

 

1.     The regular design contest is a restricted procedure where the contracting authority must invite to tender directly, simultaneously and in writing at least three tenderers.

 

2.     On conclusion of the tender assessment, the contracting entity shall sum up the tenders in writing.

 

3.     To regular design contests, Article 1, Article 6–7, Article 10 (3), (5) and (7), Article 15–16, Article 20 (1), Article 61 (3), Article 156 (4), Article 157 (4), Article 158, Article 296 (a) and Article 298 shall also apply.

 

 

PART FIVE

 

AMENDMENT AND PERFORMANCE OF CONTRACTS CONCLUDED PURSUANT TO A PUBLIC CONTRACT AWARD PROCEDURE, AUDIT OF PUBLIC PROCUREMENT

 

Title 46

 

Amendment and performance of contracts

 

Amendment of contracts

 

Article 303

 

The parties can only amend parts of the contract drawn up on the basis of the invitation, the terms and conditions of the tender specifications and the contents of the tender if a circumstance violating a material legitimate interest of either party arises after the conclusion of the contract, due to a reason unforeseeable at the time of the conclusion of the contract.

 

Performance of the contract

 

Article 304

 

1.     The contract shall be performed by the contracting party entering into the contract as the tenderer awarded the contract in the public contract award procedure [Article 91 (2), Article 52].

 

2.     Only those subcontractors may take part in the execution of the contract on the tenderer’s side, which were invited in the offer, provided that the contracting autority prescribed in its invitation to identicate all subcontractors intended to be employed for the performance of more than 10% of the contract value; in this case the subcontractor shall not use a performance assistant to an extent that is more than ten  percent of their own performance. If the contract or any part thereof cannot be performed using the identified subcontractor due to a reason unforeseeable at the time of the contract conclusion and arising thereafter, the contracting authority as contracting party may consent to the employment of another identified organisation (person), provided that such organisation (person) meets the requirements applicable to subcontractors in the public contract award procedure.

 

Article 305

 

1.     The party entering into the contract as contracting authority shall make a written declaration on acknowledgement of the performance of the contract (receipt of performance) or on the refusal of such acknowledgement, unless otherwise stipulated by law, within 15 days from the date of the performance by the party entering into the contract as tenderer or of the receipt of the written notification thereof.[74]

 

2.     In case of a works contract the party entering into the contract as contracting authority shall issue a receipt of performance upon the request of the party  entering into the contract as tenderer if the contracting authority does not start the delivery procedure upon the written notice (completion notice) of the party entering into the contract as tenderer within 15 days following the deadline defined in the contract as the deadline for starting the delivery procedure, or if they start in time but does not finish with it until the deadline defined in the contract.[75]

 

3.     The party entering into the contract as contracting authority shall pay the consideration for the tenderer within thirty days, or in case of public procurement procedures supported by funding from the European Union, within sixty days following the performance of the contents of the contract in the manner specified therein, unless otherwise stipulated by law, or the parties have agreed on deferred payment of the consideration or on payment in instalments.[76]

 

4.     In case of performance in accordance with the contract has been confirmed by the contracting authority, the party having entered into the contract as tenderer may file, following the expiry of the time-limit set out in paragraph (3), a prompt collection banking order against the bank account of the contracing authority listed in Article 22 (1).[77]

 

5.     If the party entering into the contract as tenderer has payed the consideration defined in its contract concluded with its subcontractor, or refused this payment to its subcontractor appointed in its tender, in case of Article 304 (2), in the contract, the tenderer shall inform the contracting authority thereof without any delay. If the tenderer does not fulfil its obligation to give that notice within five days, the subcontractor is entitled to to notify the contracting authority about the data set forth in paragraph (6). The contracting authority shall immediately arrange the publication of the data set forth in paragraph (6) on its website provided that it has one.[78]

 

6.     The notice described in paragraph (5) shall contain at least the following:

(a)   the indication of the contract award procedure and reference to the contrct notice;

(b)   the indication of the tenderer and the subcontractor;

(c)   the amount of the consideration, the condition of its payment and the reference to the applicable legal regulations;

(d)   the subject matter of the contract and the date of its performance;

(e)   the due date of the consideration or the reason for the refusal of performance.[79]

 

Miscellaneous provisions

 

Article 306

 

1.     The party having entered into the contract as contracting authority may terminate the contract if it stipulated that the winning tenderer must set up a company (Article 52) and the tenderer does not register the conclusion of the articles of incorporation or the acceptance of the articles of association with the Court of Registry within sixty days following the conclusion of the contract.

 

2.     In case of public works the party entering into the contract as tenderer must take out an appropriate liability insurance.

 

3.     In case of public works, the party entering into the contract as contracting authority shall supervise the work through its on-site representative (technical inspector) throughout the performance of the contract concluded pursuant to a public contract award procedure, in accordance with the terms and conditions set out in the relevant legislation.

 

4.     The conditions set out in Article 303, Article 304 (2) and in paragraphs (1)–(3) shall constitute part of the contract even if the parties did not agree, or otherwise agreed, about this.

 

5.     In case of public works concession, if the contract also falls within the force of the Act on Concessions, paragraph 4 shall apply with derogations pursuant to the provisions of the Act applicable to concession contracts and concession companies.

 

6.[80] 

 

Article 306/A[81]

 

1.       The provision of the contract concluded pursuant to a contract award procedure shall be considered null and void should it

(a)     exclude or restrict the application of legal consequences stipulated to a breach of contract perpetrated by the contracting authority, or

(b)     differ form paragraphs (2) and (3) of Article 301/A of the Civil Code, concerning the interest for late payment, at the expense of the entitled party.

2.       The contracting authority may set off only the overdue claims of the same kind that are acknowledged by the entitled party against its debts arising from the consideration based on the contract concluded pursuant to a contract award procedure.

3.       In respect of other issues, the provisions of the Civil Code shall be applied regarding the contracts concluded pursuant to a contract award procedure.

 

Title 47

 

Audit of public contract award procedures

 

Information notice about the amendment and performance of the contract

 

Article 307

 

1.     The contracting authority shall draw up an information notice about the amendment and the performance of the contract according to the templates provided in the relevant legislation, and publishes it in the Public Procurement Bulletin. The notice shall be dispatched within five working days following the amendment or performance of the contract by both parties. In the case of contracts concluded for a term over one year or for an indefinite period of time, such notice shall be drawn up annually about the partial performance of the contract. In the scope of the information obligation concerning the performance of the contract, in the case of performance due at different date(s), the date of the performance acknowledged by the contracting authority and the date when the payment of the consideration is due, shall be defined separately. The party contracted as tenderer must declare in the notice that it agrees with the contents thereof.[82]

 

2.     The contracting authority shall arrange for publication of the information notices concerning the amendment and performance of the contract on its website, provided it has one, immediately after the publication of information notices, described in paragraph (1), in the Public Procurement Bulletin.[83]

 

3.     Paragraph 1 shall not apply, if the contract award procedure is conducted as set out in Part four of this Act and it is started by a direct invitation to tender.

 

4.     The Public Procurement Council shall send to the relevant audit bodies and those performing the audit according to Article 308 (2) any notices referred to in paragraph 1 if they imply that the contract was amended in a manner conflicting with Article 303, and a considerable breach of contract has occurred attributable to certain circumstances for which either party is responsible.

 

Audit bodies, internal audit

 

Article 308

 

1.     Public procurements and public contract award procedures are regularly audited by the competent audit bodies specified in the relevant legislation, in accordance with their roles and responsibilities and scope of authority, and they may initiate a procedure or measure in case of infringement.

 

2.     Public procurements and public contract award procedures must be audited according to the supervisory and internal audit system of the budgetary authorities set out in the relevant legislation.

 

PART SIX

 

ATTESTATION

 

Certification of the contracting authority’s contract award procedures and practice

 

Article 309

 

1.     The contracting authority may request the attestation of the conformity with the law of its public contract award procedures and practice falling under the scope of this Act. Such attestation can only be requested from an accredited attestor.

 

2.     The attestation shall attest for three years following its issue the conformity of the procedures and practice of the contracting authority referred to in paragraph 1, provided that in the meantime no considerable amendments have been made to the legislation applicable to public procurement.

 

3.     For the purposes of paragraph 1, an accredited attesting body is an attesting organisation or individual accredited in Hungary or in any member states of the European Union.

 

4.     The contracting authority shall not call upon an accredited attestor to conduct the attestation procedure who has acted as an official public procurement consultant, or has been involved in any other capacity, or acted as a conciliator, in any public contract award procedures of the contracting authority concluded within the last three years before the commencement of the attestation procedure and involving attestation.

 

Article 310

 

1.     The contracting entity referred to in Article 162 may publish in the Official Journal of the European Union (TED data bank) in a notice a declaration specified in Annex 5 about having obtained the attestation if such attestation also covers the conformity of its contract award procedures and practice referred to in Chapter V.

 

2.     If the attestation of the contracting authority referred to in Article 162 is only related to the contract award procedures and practice described in Chapter VII, then the contracting authority may publish a declaration specified in Annex 6 in its notices to be published in the Public Procurement Bulletin .

 

3.     The contracting entities not mentioned in paragraphs 1 and 2 may publish a declaration specified in Annex 6 about having obtained the attestation, in their notices to be published in the Public Procurement Bulletin.

 

Accreditation of attestors

 

Article 311

 

The accreditation of attestors (award, suspension, withdrawal) is carried out by the National Accreditation Board (hereinafter referred to as ‘Board’) in accordance with the provisions of a specific law. The Board works in co-operation with the Public Procurement Council.

 

Article 312

 

1.     Accreditation criteria for attestors:

 

(a)   degree in higher education and a minimum of three years experience in public procurement;

 

(b)   no criminal record;

 

(c)   knowledge of Hungarian and European Union law pertaining to public procurement;

 

(d)   compliance with other criteria pursuant to the relevant standard [(MSZ) EN 45503].

 

2.     If the entity applying for accreditation is not a natural person, then there must be at least one person among its members personally assisting in its activity, employees or those acting for the benefit of the organisation pursuant to a long-term civil law contract who meets the criteria set out in paragraph 1, and the organisation must comply with the other criteria determined in accordance with the relevant standard.

 

3.     The Board shall suspend or withdraw the accreditation if the attestor does not fulfil the criteria required for the accreditation, or if the attestor fails to observe the law and the relevant standard in pursuing its activity.

 

4.     The suspension or withdrawal of the accreditation shall not prejudice the validity of attestations issued by the attestor prior to its suspension or withdrawal.

 

5.     Attestors whose accreditation has been withdrawn by the Board may only apply for a new accreditation three years after the withdrawal.

 

Article 313

 

1.     The accredited attestor shall promptly report to the Board any changes in its compliance with the accreditation criteria.

 

2.     The Public Procurement Council is entitled to verify the attestor’s compliance with the accreditation criteria as well as the attestor’s activity.

 

3.     The Public Procurement Council may require the attestor to supply any documents related to its attestation activity, call upon the attestor to provide all required information and conduct an on-site inspection.

 

4.     Based on its inspection, the Public Procurement Council may file a complaint about the attestor’s activity with the appeal committee of the Board, and initiate the withdrawal of the accreditation.

 

Article 314

 

The Public Procurement Council shall publish in the Public Procurement Bulletin and on its homepage the list of accredited attestors in accordance with the Board’s register on accredited attestors.

 

Attestation procedure

 

Article 315

 

1.     The attestor shall attest to the contract award procedures and practice of the contracting authority without any undue influence.

 

2.     Attestors shall be required to conduct a detailed examination of the contract award procedures and practices of the contracting authority. They shall, at the request of the contracting authority, report in writing to the contracting authority on the results of their examination. Should the attestors identify any shortcomings or irregularities in the course of their examination, they shall call upon the contracting authority to correct them.

 

3.     Where a attestor concludes in an attestation procedure that the contract award procedures and practices of the relevant contracting authority are in conformity with the law, it shall issue a attestation to the contracting authority.

 

4.     Should the attestor identify any irregularities in the contract award procedures and practices of the contracting authority, it may issue a attestation only on condition that the contracting authority has corrected the irregularities identified and has taken the necessary measures to ensure that no further irregularities occur.

 

5.     The attestor is bound by a confidentiality obligation with respect to any facts, solutions or data obtained in the course of the attestation procedures.

 

6.     The attestation procedure shall otherwise be governed by the relevant standard [(MSZ) EN 45503] with the derogation that only Chapters IV and VI, and in cases of attestation of  contract award procedures and practice in accordance with Part Four the provisions of the standard shall apply as appropriate.

 

7.     The costs of the attestation procedure shall be borne by the contracting authority requesting the attestation procedure.

 

PART SEVEN

 

JUDICIAL REMEDIES AVAILABLE FOR  PUBLIC PROCUREMENT

 

CHAPTER VIII

 

GENERAL PROVISIONS APPLICABLE TO JUDICIAL REMEDIES

 

Article 316

 

1.     Against acts or omissions in violation of the legislation applicable to public procurement and public contract award procedures, judicial remedy pursuant to the provisions of this Part shall be available.

 

2.     The judgement of legal disputes related to contracts concluded pursuant to a contract award procedure, with the exception of legal disputes arising from the amendment of the contract violating Article 303 or from the performance of the contract violating Articles 304 or 306 (2), and legal disputes related to the issue of receipt of performance for deadline in accordance with paragraphs (1) and (2) of Article 305,[84] and claims in civil law related to contract award procedures shall fall within the competence of a court.

 

3.     Wherever this Part refers to public procurement or public contract award procedure, such reference shall also include design contests.

 

CHAPTER IX

 

PROCEDURE OF THE ARBITRATION COMMITTEE FOR PUBLIC PROCUREMENT, JUDICIAL REMEDIES CONCERNING ITS RESOLUTIONS

 

Title 48

 

General provisions

 

Application of the rules of the state administrative authority procedure

 

Article 317

 

1.     Save as otherwise provided for in this Act, to the procedure of the Arbitration Committee for Public Procurement the provisions of the Act CXL of 2004 on the General Rules of the State Administrative Authority Procedure (hereinafter referred to as ‘SP’) shall apply.

 

2.     With the exception provided in Paragraph 3, in the proceedings of the Arbitration Committee for Public Procurement the rules of procedure related to electronic administration according to Articles 160 to 162 of SP shall not apply.

 

3.     The following electronic procedures may be applied in the proceedings of the Arbitration Committee for Public Procurement:

 

a)    Submission of applications, of briefs, and of annexes thereto;

 

b)    Invitation for the submission of missing data, and submission of missing data,

 

c)     Submission of an application for a certification;

 

d)    Summons;

 

e)     The notification of client and any other authority communication regarding information to, notification of, and invitation to the client.

 

Powers and jurisdiction of the Arbitration Committee for Public Procurement

 

Article 318

 

1.     The Arbitration Committee for Public Procurement shall have the powers to conduct proceedings initiated against any infringement of the legislative provisions applicable to public procurement and public contract award procedures, including the case described in Article 219 (9).

 

2.     The Arbitration Committee for Public Procurement shall have the powers to conduct proceedings initiated against the amendment or performance of contracts, concluded in a public contract award procedure, in a manner violating this Act.

 

3.     The Arbitration Committee for Public Procurement shall also have powers to decide legal disputes related to infringements within the meaning of paragraph 1 and 2, committed by any organisation (or natural person) applying this Act on a voluntary basis.

 

4.     The powers of the Arbitration Committee shall extend to the whole territory of the state.

 

Title 49

 

Public procurement commissioners

 

Article 319

 

1.     In the cases determined in paragraphs Article 318 (1)–(3) (hereinafter referred to as ‘public procurement cases’), barring the exception described in paragraph 4, the Arbitration Committee for Public Procurement shall act in a panel consisting of three public procurement commissioners, passing its resolution by a majority vote.

 

2.     The members and the president of the proceeding panel shall be appointed by the President of the Arbitration Committee for Public Procurement. At least two of the appointed members of the panel to try the case shall have qualified for the Bar, and wherever possible, one of the members should have a degree in higher education closely related to the subject-matter of the case. The president of the panel shall only be a public procurement commissioner who has qualified for the Bar.

 

3.     The president of the proceeding panel shall be responsible for preparing and overseeing the procedure. With the exception of interim measures and of resolutions resulting in an end of the public procurement case [Articles 30 and 31(1) of SP, and Articles 325 (3) and (4) of this Act] and of a resolution on the substance of the public procurement case (in the following: substantial resolution) [(Article 340 (1)], the president of the proceeding panel may take any measures and make any decisions which, under the provisions of this Act, fall within the competence of the Arbitration Committee.

 

4.     In matters specified in Article 328 a public procurement commissioner of the Arbitration Committee for Public Procurement shall proceed. Only public procurement commissioners having qualified for the Bar can be appointed single commissioners by the chairman of the Arbitration Committee for Public Procurement. Any reference in this Act to proceeding panel (president) shall also include single commissioners.

 

Article 320

 

1.     Save for the cases specified in Article 42 (1) and (3) of the SP, public procurement commissioners shall be prohibited from acting in the public procurement case if

 

(a)   they own a share in the contracting authority or in an entity which has unlawfully failed to adopt the contract award procedure in its procurement, or own a share in a tenderer or in any other interested entity having initiated the procedure (hereinafter jointly referred to as ‘client entity’);

 

(b)   they own a share in an entity which maintains regular business relations with the client entity;

 

(c)   he has been an employee, or has been in another legal relationship for the purpose of employment with, or has held a membership in, or has been an executive officer or a member of the supervisory board of, or has had a share in, the client organisation within the last two years preceding the commencement of the remedy procedure.

 

2.     Public procurement commissioners shall be prohibited from acting in a public procurement case if any of their relatives

 

(a)   is employed by, or has a working relationship of any other kind with, the client entity or is a member thereof, or an executive officer or board member thereof;

 

(b)   owns a share in the client entity;

 

(c)   is an employee or has a working relationship of any other kind with, or is a member, an executive officer or board member of, an entity which maintains regular business relations with the client entity, or owns a share of the former;

 

(d)   works as a civil servant for an entity which is either responsible for the supervision of the client entity or is subordinated to it, or has granted the client entity any support or exclusive rights.

 

Article 321

 

1.     The public procurement commissioner shall notify without delay and not later than within 3 (three) days the Chairman of the Arbitration Committee if any reason for his exclusion arises pursuant to Article 320 of this Act or Article 42 (1) or (3) of the SP. He shall assume disciplinary and financial liability for any failure of, or delay in, filing such notification.

 

2.     The decision in exclusion cases shall be made by the Chairman of the Arbitration Committee for Public Procurement, who shall appoint a new member of the proceeding panel if necessary, and decides whether the acts of the proceeding carried out by the excluded public procurement commissioner shall be repeated.

 

3.     If the public procurement commissioner has reported the reason for the exclusion himself, he shall not proceed in the case until the report has been dealt with. He may proceed in the case under any other circumstances, but he shall not be involved in passing a resolution concluding the case. This restriction shall not be applicable if a claim is repeatedly made by the client against the same commissioner.

 

4.     If the reason for the exclusion has been reported by the client, the client may challenge the resolution refusing the exclusion in the review against the resolution passed on the substance of the case.

 

5.     In case a member of the proceeding panel is excluded, the time spent on dealing with the exclusion shall not be included when calculating the time-limits for the proceeding.

 

6.     If the member of the Arbitration Committee for Public Procurement is participating in the procedure as a member of the proceeding panel, the decision on his exclusion shall be made by the president of the Public Procurement Council.

 

Title 50

 

Procedure of the Arbitration Commission for Public Procurement

 

Launching remedy proceedings

 

Article 322

 

The Arbitration Committee shall proceed upon application or of its own motion.

 

Article 323

 

1.     An application may be submitted by the contracting authority and any tenderers, candidates or any other interested person (hereinafter referred to as ‘applicant’) whose right or legitimate interest is being harmed or risks being harmed by an activity or failure which is in conflict with this Act.

 

2.     The application may be submitted within fifteen days after the occurrence of the infringement, and within eight days following the announcement of the results in cases of infringing decisions closing a public contract award procedure. If the applicant learned of the infringement at a later date, the time-limit shall commence at that point of time. No application may be submitted later than 90 days following the occurrence of the infringement. Failing to meet such time-limits shall result in the forfeiture of rights.

 

3.     When compliance with the time-limit referred to in paragraph 2 is examined, the infringement shall be deemed to have become known at:

 

(a)   the publication date of the notice in the case of a notice launching a contract award procedure or the date when the invitation was sent in cases of direct invitation;

 

(b)   the publication date of the notice, in the case of notices which have been published after the expiry of the relevant time-limit;

 

(c)   the date of the conclusion of the contract, or if this date cannot be established, then the commencement of its performance by either party, in case of a procurement bypassing the contract award procedure.

 

4.     When establishing the time-limit pursuant to paragraph 2, the infringement shall be considered to have been learnt about

 

(a)   on the fifteenth day from the publication of the notice or the receipt of the direct invitation launching the public contract award procedure with unlawful content, or from the day when the tender specifications were made available;

 

(b)   on the fifteenth day after the expiry of the publication date of the notice in the case of a notice dispatched following the expiry of the prescribed time-limit;

 

(c)   on the thirtieth day from the publication of the notice communicating the amendment or performance of the contract, in cases of contracts concluded in a public contract award procedure and amended or performed in a manner violating this Act.

 

5.     The tenderer or other interested applicant shall notify the contracting entity or procurer before submitting its application.

 

Article 324

 

1.     The application shall state:

 

(a)   the name and place of establishment (place of residence) of the applicant (and its representative), and the facts supporting the eligibility of the applicant;

 

(b)   the name and place of establishment of the contracting authority of the contract award procedure concerned in the application and the subject of the procurement, or as the case may be, the name, and place of establishment of the procurer and the subject of the procurement in the case of a procurement carried out without a contract award procedure;

 

(c)   the date when the infringement occurred and the date when the applicant learnt thereof;

 

(d)   the infringed provision of law;

 

(e)   the proposal (motion) for the decision of the Arbitration Committee for Public Procurement [Article 340 (2)–(6)] and the reasons for such a decision;

 

(f)    the proposal (motion) for ordering an interim measure (Article 332) and the and the reasons for it;

 

(g)   the names and place of establishments (places of residence) known to the applicant of any entities possibly interested in the public procurement case.

 

2.     If the applicant is represented by an agent in the procedure, the authorisation of such an agent shall be attached to the application.

 

3.     Applications for a procedure by the Arbitration Committee for Public Procurement shall be subject to the payment of an administrative service fee, the value of which is HUF 900.000 for procedures specified in Part 2 of this Act, and HUF 150.000 for procedures specified in Part 3 and Part 4 of this Act. If the application is aimed to establish if the notice (invitation) is illegal, the fee is HUF 150.000 only. No exemption shall be granted from the payment of the fee. The application shall be accompanied by a supporting document showing that the fee has been paid.

 

4.     The number of copies of the application which are to be lodged shall be the number of potential parties concerned in the proceedings as can be known to the applicant, plus one.

 

Article 325

 

1.     The remedy procedure pursuant to an application in compliance with Article 323 (1)–(4) and 324 shall be launched by the Arbitration Committee on the working day following the day of receipt of such an application at the latest.

 

2.     If the application does not include the information as provided for in Article 324 (1) or there is no supporting document to show that the fee provided for in Article 324 (3) has been paid or as the case may be, no authorisation for the authorised agent has accompanied the application, the Arbitration Committee for Public Procurement shall call upon the applicant to supply the missing information or document(s) within five days, and warns the applicant that, should he submit an incomplete application again, such application shall be dismissed by the Arbitration Commission for Public Procurement.

 

3.     If the Arbitration Committee for Public Procurement concludes that the application has been submitted by an ineligible person, it shall dismiss the application with a decision brought within eight days without a substantive examination. According to Article 345 an individual review shall be available regarding a decision dismissing an application without a substantive examination.

 

4.     The Arbitration Committee may dismiss proceedings with a decision in cases if according to Paragraph 3 a substantive reason existed for dismissing the application, but the reason for dismissing was learned by the Arbitration Committee only after the procedure had started. According to Article 345 an individual review shall be available regarding the decision dismissing proceedings.

 

5.     The applicant may withdraw his application initiating proceedings until a resolution has been passed pursuant to Article 340 (1) on the substance of the case. If the application is withdrawn, the administrative service fee shall not be reimbursed to the applicant.

 

Article 326

 

The Arbitration Committee shall launch a procedure of its own motion in the cases specified in Article 327 (1), 328 and 329.

 

Article 327

 

1.     A procedure of the Arbitration Committte for Public Procurement of its own motion may be initiated by the following entities or persons on the grounds that they have, in the performance of their duties, learned of any behaviour or omission in violation of this Act:

 

(a)   a member and Chairman of the Public Procurement Council;

 

(b)   the State Audit Office;

 

(c[85]) an internal audit body designated by the Government;

 

(d)[86] the public administration office;

 

(e)[87] the treasury;

 

(f)[88] the parliamentary commissioner (ombudsman);

 

(g)   the entity granting support for the public procurement, or the entity co-operating pursuant to law in the use of the support;

 

(h)   the entity entitled to calls for applications in centralised public procurement.

 

2.     As regards the time limit fixed for initiating the procedure, the provisions of Article 323 (2)–(3) shall apply, the organisations referred to in paragraph 1 (b) (c), (e) and (g) shall not initiate a procedure after a year, or, in the case of an unlawful bypass of the public contract award procedure, after three years, from the occurrence of the infringement.

 

3.     Document initiating the ex officio procedure of the Arbitration Committee for Public Procurement shall contain the data listed in Article 324 (1) (a)–(d) and (g), and a proposal may be made concerning points (e) and (f). The initiating document shall be accompanied by copies of the documents available in relation to the procurement (or public procurement) involving an infringement.

 

4.     The Arbitration Committee for Public Procurement shall launch the procedure on the first working day following the receipt of the initiative complying with paragraph 1.

 

5.     If the initiative does not contain the data set out in paragraph 3, the Arbitration Committee shall call on the entity or person concerned to provide the missing data. Article 325(2) shall be applied appropriately regarding missing data.

 

6.     Dismissal of the initiative without a substantive examination, and a termination of the procedure with a decision shall be governed by Article 325(3) and (4), appropriately.

 

Article 328

 

If the contracting authority fails to present to the Public Procurement Council the annual statistical summary by the time-limit set in Article 16 (3), the Chairman of the Arbitration Committee for Public Procurement shall launch the ex officio procedure of the Committee according to Article 327.

 

Article 329

 

1.     Where the president of the Arbitration Committee finds upon the examination of the documents submitted to the Arbitration Committee for Public Procurement in relation to the launch of a negotiated procedure without prior publication of a tender notice or that of a simplified procedure, that there is a well-founded supposition of a breach of the rules and fundamental principles set out for public procurement and for public procurement procedures, he shall commence the procedure of the Arbitration Committee for Public Procurement ex officio not later than fifteen days counted from the receipt of such documents.

 

2.     Where compliance with the requirements set out by law concerning the applicability of a negotiated procedure without prior publication of a tender notice or a simplified procedure, or lawfulness of an invitation to tender prescribed by law cannot be clearly established on the basis of the documents supplied by the contracting authority, the Chairman of the Arbitration Committee for Public Procurement shall call upon the contracting authority to supply within three days the missing information as required by him. Should the contracting authority fail to produce the missing information, the Chairman of the Arbitration Committee shall decide on the basis of the information already available.

 

Article 330

 

1.     The Arbitration Committee for Public Procurement shall notify the clients and any parties interested in the public procurement case of the launch of the procedure, and shall request them to submit their comments within five days. The Arbitration Committee shall attach to the notice the application, or in cases of ex officio launched proceedings according to Articles 327 and 328, the document initiating this procedure.

 

2.     Furthermore the Arbitration Committee for Public Procurement shall call upon the contracting entity of the relevant contract award procedure or the procurer who carried out a procurement bypassing the contract award procedure, to supply without delay all documents related to the procurement in question, or if it is not required, the documents required by the Committee, concerning such procurement. When the application is submitted by the contracting entity, the available documents shall be supplied by the entity together with the application.

 

3.     When a procedure is launched by the Arbitration Committee for Public Procurement, the contracting authority may suspend the ongoing public contract award procedure or postpone the conclusion of the contract until a resolution is made by the Arbitration Committee for Public Procurement. The contracting authority shall also notify the Arbitration Committee for Public Procurement to this effect. The suspension of the public contract award procedure shall extend any time limits running by the duration of the suspension period.

 

Merging cases

 

Article 331

 

The Arbitration Committee for Public Procurement may order that certain cases being dealt with by the Commission be merged if their subjects are interrelated or settling such cases collectively is justified by practical, economic or other procedural considerations.

 

Interim measures

 

Article 332

 

1.     In an ongoing remedy procedure the Arbitration Committee may, on request or of its own motion, order interim measures until the conclusion of the contract entered into in the public contract award (or procurement) procedure involved in the remedy procedure, taking into account all circumstances in the case in question, if there is indicative evidence that an infringement of the rules of this Act or principles has been committed or a risk thereof exists.

 

2.     As an interim measure, the Arbitration Committee for Public Procurement shall

 

(a)   order the suspension of the contract award procedure;

 

(b)   prohibit the execution of a contract not yet concluded;

 

(c)   call upon the contracting authority involved in the contract award procedure to invite the applicant seeking a remedy to take part in the contract award procedure.

 

3.     Suspension of the contract award procedure shall result in extending the already running time limits prescribed in the invitation by the duration of the suspension period.

 

Initiating a preliminary decision-making procedure by the European Court

 

Article 333

 

1.     If the Arbitration Committee for Public Procurement initiates a preliminary decision-making procedure by the European Court in accordance with the rules laid down in the Treaty establishing the European Community, such initiative shall be subject of an individual decision, and the Arbitration Committee for Public Procurement shall suspend the procedure in question at the same time. In its decision, the Arbitration Committee for Public Procurement shall identify the issue requiring a preliminary decision by the European Court, and recite the facts and the relevant Hungarian legislation to the extent required for addressing the issue raised. At the same time when the decision is delivered to the European Court, the Arbitration Committee for Public Procurement shall also supply a copy thereof to the Minister responsible for Justice[89] for their information.

 

2.     An individual review under Article 345 shall be available concerning such a decision initiating the preliminary decision-making procedure. Appeal for such an individual review shall defer the implementation of the decision.

 

Scope of investigation by the Arbitration Committee for Public Procurement

 

Article 334

 

1.     If during the ongoing remedy procedure and before a resolution is made on the substance of the case (Article 340 (1)) the Committee learns of an infringement additional to those already being investigate pursuant to the application or initiative, it shall be required to proceed of its own motion also in respect of such an infringement.

 

2.     In case an application is being withdrawn, the Arbitration Committee for Public Procurement shall continue the procedure if, based on the available data, there is indicative evidence that an infringement has taken place.

 

3.     Should the Arbitration Committee, in the course of the procedure, detect any circumstances which might suggest that another law or regulation has been violated, it shall report such violation to the competent authority, in particular to the one responsible for prosecution, as well as to the State Audit Office, an internal audit body designated by the government[90] or the Office of Economic Competition.

 

Equal treatment of the parties

 

Article 335

 

The Arbitration Committee shall make arrangements to ensure that both the applicant (the party initiating the procedure) and the opposing party can reveal all new facts in the course of the procedure, as well as all applications and statements filed, and all documents submitted to the Arbitration Committee for Public Procurement, and enable both parties to put forward their points of view thereon.

 

Hearing

 

Article 336

 

1.     At the hearing held by the Arbitration Committee for Public Procurement, in addition to the parties to the proceedings, other interested persons may attend in person or through their representatives, and they may make representations, and bring forward their evidence until the hearing is closed.

 

2.     The hearing shall be held in public. The Arbitration Committee for Public Procurement may, by its decision, exclude the public from the hearing or a part of thereof if requested or ex officio if this is necessitated in order to keep a state secret, professional secret, business secret or any other secrets defined as such in the relevant legislation.

 

Access to documents

 

Article 337

 

1.     The applicant of the public procurement case (the initiating party), the opposing party as well as their representatives and any members of the Public Procurement Council shall have the right at any time during the procedure to view and make copies or notes of all documents drawn up in the course of the contract award procedure or the remedy procedure.

 

2.     The contracting authority, the tenderer or the applicant may request, referring to the protection of business secrets, that a prohibition or restriction be imposed on access to documents by any persons specified in paragraph 1 in the case of documents not considered to have public interest or information made public out of public interest, and the lack of their disclosure does not impede the opposing party in exercising its right to legal remedy while their disclosure to other parties would unduly hurt the business interests of the party. When making a decision on an application to this effect, the Arbitration Committee may at the same time require the relevant  party to prepare a version of the document in question which will not include any confidential business information.

 

3.     Access to documents drawn up in the course of the public contract award procedure or the remedy procedure as well as the making of copies and notes thereof by persons other than those referred to in paragraph 1 shall only be granted to persons who have a legitimate interest in getting to know the documents and their access to documents does not violate any rules applicable to the protection of secrets. Such access shall be subject to the permission of the Arbitration Committee.

 

4.     Documents containing state secrets or service secrets shall not be accessed in the absence of the relevant permit. Neither shall other documents containing other information protected by law be accessed where such access is prohibited by the legislation regulating the protection of the relevant information, or the entity specified in paragraph 1 and requesting access is not prevented from exercising its right for judicial remedy by not being familiar with the protected information.

 

5.     Minutes taken of a hearing from which the public has been excluded in order to protect a state or professional secret must not be copied or have notes made of. Even access to such documents requires permission for access pursuant to Act on State and Professional Secrets, subject to the terms and conditions set by the president of the Arbitration Committee for Public Procurement.

 

Article 338

 

1.     The Arbitration Committee for Public Procurement may impose a procedural pecuniary penalty from HUF 50.000 up to HUF 500.000 on any person taking part in the public procurement case if such participant

 

(a)   has supplied false data or has failed to disclose data relevant to the judgement of the case;

 

(b)   has failed to supply the required information or has supplied it after the expiry of the time-limit set therefore;

 

(c)   has been hindering access to documents related to its business, professional or public procurement activities;

 

(d)   has made a clearly unsubstantiated statement with respect to exclusion, or makes a repeated unsubstantiated statement against the same public procurement commissioner during the same procedure.

 

2.     A procedural pecuniary penalty may be imposed more than once.

 

3.     An individual review of the decision imposing a pecuniary penalty of a procedural nature may be sought under Article 345. Appeal for such individual review shall defer the implementation of the decision.

 

Processing time

 

Article 339

 

1.     When no hearing is held in the case, the Arbitration Committee for Public Procurement shall be required to pass a decision within fifteen days counter from the launch of the procedure, save for the case specified in paragraph 3.

 

2.     In the event of the Arbitration Committee having held a hearing in the case, it shall be required to pass a decision within thirty days counted from the launch of the procedure, save for the case specified in paragraph 3.

 

3.     In the case specified in Article 318 (2), the Arbitration Committee for Public Procurement shall make a decision within sixty days counted from the launch of the procedure.

 

4.     Where justified, the time-limit referred to in paragraphs 1 and 2 may be extended for a period of up to 10 days, and the time-limit referred to in paragraph 3 may be extended for a period of up to thirty days on one occasion, which shall be notified to the parties to the proceedings prior to the expiry of the initial time-limit set in accordance with paragraphs 1 to 3.

 

5.     Client shall not possess the right to apply for a suspension of the proceedings.

 

Decision of the Arbitration Committee for Public Procurement on the substance of the matter

 

Article 340

 

1.     The Arbitration Committee for Public Procurement shall make its decision in the name of the Public Procurement Council. The Committee may also combine the sanctions defined in this Article.

 

2.     In its decision the Arbitration Committee for Public Procurement

 

(a)   shall dismiss any unfounded applications;

 

(b)   in proceedings launched ex officio shall state the lack of infringement;

 

(c)   shall state that an infringement has occurred;

 

(d)   shall, before the closure of the contract award procedure, besides stating that an infringement has taken place, call upon the person who committed the infringement to act in conformity with the rules laid down in this Act, or shall order that the contracting entity may take its decisions only subject to certain conditions; 

 

(e)   shall, besides stating that an infringement has taken place, declare void any decision made by the contracting entity either during the contract award procedure or as a decision closing that procedure, provided that no contract has been concluded yet on the basis of the decision in question;

 

(f)    shall adjudicate on who shall pay the fee for administrative service and the costs related to the legal remedy procedure.

 

3.     Where the Arbitration Committee for Public Procurement adjudicates pursuant to paragraph 2 (c)–(e), it may

 

(a)   prohibit the tenderer, for a period of no more than five years, from participating in any public contract award procedure;

 

(b)   order the removal of the tenderer from the official list of qualified tenderers;

 

(c)   order the withdrawal of the attestation granted to the contracting entity;

 

(d)   order the application of Article 40 (4), Article 179 (5), Article 245 (6) or Article 274 (3);

 

(e)   impose a pecuniary penalty on any organisation (person) which has violated this Act or has concluded a contract while being aware of the manifest infringement committed, and on any person liable for such an infringement or for the conclusion of such a contract, or on any person or entity having a legal relationship with the former entity and being liable for the infringement in question.

 

4.     If the infringement occurred while unlawfully and wilfully bypassing the public contract award procedure, the Arbitration Committee for Public Procurement shall state that an infringement has taken place, as well as impose a pecuniary penalty.

 

5.     Where the Arbitration Committee for Public Procurement states that an infringement has taken place under a case pursuant to Article 328, it shall impose a pecuniary penalty.

 

6.     If the Arbitration Committee for Public Procurement establishes that an infringement has occurred in the matter pursuant to Article 318 (2), it may impose a penalty.

 

7.     Application of the sanctions provided for in this Act shall preclude the application of the first sentence of paragraph 2 of Article 200 of the Civil Code.

 

8.     Pursuant to the general rules set forth in civil law, the Arbitration Committee for Public Procurement may bring an action with a view to annulling the contract concluded in a manner infringing the legislation applicable to public procurement and public contract award procedures.

 

Article 341

 

1.     Article 340 (3) (a) shall apply only in the event of serious or recurrent acts of infringement. The period of prohibition shall be fixed taking due account of all circumstances related to the matter.

 

2.     Article 340 (3) (b) shall be applied if it is ascertained that the approved tenderer does not fulfil the approval requirements.

 

3.     In determining whether a pecuniary penalty is to be imposed and in fixing its amount, the Arbitration Committee for Public Procurement shall take into account all the circumstances relevant in the matter, in particular the importance of the infringement committed, the subject and value of the public procurement concerned, the effect of the infringement on the decision closing the contract award procedure, the recurrence, if any, of the infringement of this Act and the liable person’s readiness to cooperate in the proceedings. In establishing the sum of the pecuniary penalty, it shall also be required to take into account whether the act of infringement has been manifestly deliberate.

 

4.     Pursuant to Article 340 (3) (e) and (4)–(6), the amount of the pecuniary penalty shall not exceed 30 percent of the value of the public procurement in question.

 

5.     The amount of the pecuniary penalty imposed pursuant to Article 340 (4) shall not exceed 30 percent of the value of the public procurement in question, but shall be at least two million Forints, or, in the case of natural persons, two hundred thousand Forints.

 

6.     The Arbitration Committee for Public Procurement shall charge the fee for administrative service and the costs incurred in relation to the remedy procedure to the person who has committed the infringement or, failing any infringement, to the applicant who has submitted an unfounded application. Where no infringement has been found, the costs of remedy procedures launched ex officio shall be borne by the State. Costs shall be deemed as costs of remedy procedures if they are incurred during the procedures in relation to expedient and sincere procedural order (especially fees to witnesses, experts and interpreters, translations, costs of site inspections, costs incurred in relation to the client exercising its access right to the documents, the cash expenses and fees of lawyers or legal advisers representing the client).

 

7.     The costs of remedy procedures shall be generally established on the basis of the supporting documents presented by the relevant party or other parties of the procedure, or, where it is not possible, on the basis of the written statement of the relevant party. The Arbitration Committee for Public Procurement may reduce the amount of unduly high procedural costs. The Arbitration Committee for Public Procurement shall state the grounds for such decision

 

Article 342

 

1.     If the Arbitration Committee for Public Procurement annuls the decision of the contracting authority having concluded the procedure, then the contracting authority shall be entitled to make a new decision within thirty days following the date when the resolution becomes enforceable. The contracting authority shall obtain the statement of all tenderers having submitted valid tenders to the effect that they uphold their tenders before making its decision.

 

2.     If the Arbitration Committee for Public Procurement establishes in its decision pursuant to Article 340 (1) an infringement of the legislation applicable to public procurement or the public contract award procedure, the contracting authority or the party entering into the contract as tenderer may, within thirty days from the service of the decision of the Arbitration Committee for Public Procurement, cancel the contract concluded pursuant to the relevant public contract award procedure, provided that the infringement affected the decision concluding the public contract award procedure.

 

Service and publication of the decision

 

Article 343

 

1.     The substantial resolution as well as the decision signifying the end of the case regarding public procurement shall be served on the clients, as well as on other parties having an interest in the case. When the decision or the resolution signifying the substantial end to the case is related to a public procurement realised by subsidies, the decision shall also be served on the organisation providing such subsidies for the public procurement.

 

2.     The decision not referred to in paragraph 1 shall be delivered to the client, or to any other participant in the procedure, for whom the decision establishes rights or obligations, as well as having a direct implication on their legal status.

 

3.     The decision on the substance of the case shall be published in the Public Procurement Bulletin. The decision shall be published even if the Arbitration Committee for Public Procurement has excluded the public from the proceedings pursuant to Article 336 (2). The Arbitration Committee for Public Procurement shall publish the decision on the substance of the case even if an application for a judicial review (Article 345) of the decision has been lodged, but it shall also include a reference to that fact.

 

Remedy procedures for pre-approval cases

 

Article 344

 

1.     The provisions in this Chapter shall apply to remedy procedure for cases pursuant to Article 219 (9) with derogations pursuant to paragraphs 2–4, as appropriate.

 

2.     The applicant may lodge an appeal against the rejection of its pre-approval application and its deletion from the pre-approval list. Such appeal may be lodged within fifteen days of receiving written notification of the same by the contracting entity.

 

3.     The appeal shall state:

 

(a)   the name and place of residence or establishment of the applicant (and its representative);

 

(b)   the name and place of establishment of the contracting entity operating the pre-approval system covered by the appeal;

 

(c)   the date of receiving the contracting entity’s written notification;

 

(d)   the legal provision violated;

 

(e)   the motion relating to the decision of the Arbitration Committee for Public Procurement, and its reasons.

 

4.     In its decision, the Arbitration Committee for Public Procurement shall, besides stating that an infringement has taken place, declare void or vary the contracting entity’s decision.

 

Title 51

 

Review of decisions of the Arbitration Committee for Public Procurement

 

Review of decisions of the Arbitration Committee for Public Procurement

made in the course of proceedings

 

Article 345

 

1.     Individual review of decisions of the Arbitration Committee for Public Procurement made in the course of the proceedings shall be available only if this Act so provides. Review shall be available pursuant to this Article also against decisions suspending the proceedings.

 

2.     Applications for a review may be submitted to the Arbitration Committee for Public Procurement within eight days from the communication of the decision. Upon the receipt of the application, the Arbitration Committee for Public Procurement shall forward it, together with the documents of the case, to the court without delay.

 

3.     Applications for an individual review of a decision of the Arbitration Committee for Public Procurement made in the course of the proceedings shall be decided by the Metropolitan Court of Budapest by way of a priority treatment within the framework of a non-contentious procedure. The Court may change the decision of the Arbitration Committee for Public Procurement. No appeal or judicial review shall lie from the Court’s relevant order.

 

4.     Unless otherwise required by this Act or the nature of the non-contentious procedure, Chapter XX of Act III of 1952 on the Act on Civil Procedure (hereinafter: CP) shall apply as appropriate to the proceedings of the court.

 

Review of the decisions of the Arbitration Committee for Public Procurement on the substance of the case

 

Article 346

 

1.     No appeal, no application for retrial, nor for equity shall be brought against the decision of the Arbitration Committee for Public Procurement on the substance of the case. Anyone whose right or legitimate interest is being prejudiced by the decision of the Arbitration Committee for Public Procurement on the substance of the case, or the person or organisation requesting the procedure of the Arbitration Committee for Public Procurement pursuant to Article 327 (1), shall be entitled to bring an action before the court for its judicial review.

 

2.     As regards the court proceedings, Chapter XX of the CP shall apply, except where derogations defined in Articles 347–349 shall be applicable.

 

Article 347

 

1.     The application initiating the proceedings shall be submitted to the Arbitration Committee for Public Procurement within fifteen days from the service of the decision. It shall also include a statement as to whether or not the claimant requests a hearing to be held.

 

2.     The claim shall not have a suspending effect on the enforcement of the decision, however, the Court may stay the enforcement of the decision at any time during the proceedings, either ex officio or in an application.

 

3.     Upon the receipt of the application, the Arbitration Committee for Public Procurement shall forward it, together with the documents of the case and its statement in accordance with Article 331 of the Code on Civil Procedure, to the court without delay. In its statement the Arbitration Committee for Public Procurement shall indicate whether it requests that a hearing be held.

 

Article 348

 

1.     Any person who is not to be granted to act as a public procurement commissioner on grounds set out in Article 320 shall be excluded from trying the case and shall not participate in it as a judge.

 

2.     The court shall serve the application initiating the proceedings conforming to legislation within eight days and at the same time shall

 

(a)   provide the claimant with a written statement of the Arbitration Committee for Public Procurement;

 

(b)   inform of the possibility to intervene those interested in the public procurement case with regard to whom the decision of the Arbitration Committee for Public Procurement contains any provisions.

 

3.     In the event that the parties have not requested that a hearing be held, the court shall adjudicate without holding a trial. Otherwise the date of the trial shall be fixed without within eight days so that the trial shall be held at the latest on the thirtieth day from the date of receipt by the court of the application initiating the procedures.

 

4.     The proceedings shall be conducted by way of a priority treatment.

 

5.     The court may vary the decision of the Arbitration Committee for Public Procurement and apply sanctions pursuant to Article 340 (2) (b) and (e)–(h), and (3)–(6).

 

6.     If the decision concerns a public procurement implemented with support, the decision shall also be served on the organisation providing the support for the public procurement implemented with such support.

 

Article 349

 

1.     Decisions of the court trying the case pursuant to Article 346 at first instance shall be open to appeals to be lodged within eight days from the service of the decision.

 

2.     The court of second instance shall conduct the proceedings by way of a priority treatment.

 

3.     The decision shall be served according to the provisions of Article 348 (6).

 

CHAPTER X

 

CIVIL ACTIONS RELATED TO PUBLIC PROCUREMENT

 

Article 350

 

Any claim in civil law grounded on an infringement of legislation applicable to public procurement or the public contract award procedure shall be admissible on condition that the infringement has been stated by the Arbitration Committee for Public Procurement, or, in the course of the review of the legally enforceable decision of the Arbitration Committee for Public Procurement, by the court.

 

Article 351

 

If tenderers only claim the reimbursement of their costs (damages) incurred in the pre