Article 87 by yaofenji

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									                                                Act CXXIX of 2003
                                               on Public Procurement
                                       (NOT OFFICIAL TRANSLATION)
                                             TABLE OF CONTENTS

PART ONE - GENERAL PART …………….3                                                Title 16 - Restricted and negotiated
   CHAPTER I - BASIC PROVISIONS ......... 3                                    procedures published by means of
   CHAPTER II - DEFINITIONS ................... 5                              prequalification notices ..................... 88
   CHAPTER III - COMMON PROVISIONS                                             Title 17 - Negotiated procedure without
   CONCERNING PUBLIC                                                           a notice .............................................. 92
   PROCUREMENT AND CONTRACT                                                    Title 18 - Framework agreement
   AWARD PROCEDURES ........................... 9                              procedure ........................................... 94
                                                                               Title 19 - Simplified procedure ......... 97
PART TWO - PROVISIONS RELATED TO                                               Title 20 - Rules governing design
PUBLIC PROCUREMENTS REACHING                                                   contests .............................................. 97
COMMUNITY THRESHOLDS…………….. 15
   CHAPTER IV ........................................... 15        PART THREE - PROVISIONS
   CONTRACT AWARD PROCEDURES IN                                     CONCERNING PUBLIC PROCUREMENTS
   GENERAL ................................................ 15      OF A VALUE REACHING THE NATIONAL
      Title 1 - The scope of application of this                    THRESHOLD ................................................. 97
      Chapter ............................................... 15       CHAPTER VI - GENERAL CONTRACT
      Title 2 - General rules for contract                             AWARD PROCEDURE .......................... 97
      award procedures ............................... 22                  Title 21 - Scope of application of the
      Title 3 - Open procedures ................... 25                     chapter ............................................... 97
      Title 4 - Overall rules of two-stage                                 Title 22 - General rules of public
      procedures .......................................... 46             procurement ....................................... 99
      Title 5 - Restricted procedures ........... 54                       Title 23 - Open procedure................ 101
      Title 5/A - Competitve dialogue......... 54                          Title 24 - General rules applicable to
      Title 6 - Negotiated procedures .......... 57                        two-stage procedures ....................... 102
      Title 7 - Accelerated procedures ........ 63                         Title 25 - Restricted procedure ........ 103
      Title 7/A - Framework agreement                                      Title 25/A - Competitive dialogue ... 103
      procedure ............................................ 64            Title 26 - Negotiated procedure ....... 103
      Title 8 - Special rules pertaining to                                Title 27 - Accelerated procedure ..... 104
      public works concession................... 676                       Title 28 - Framework agreement
      Title 9 - Simplified procedure ............ 69                       procedure ......................................... 104
      Title 10 - Rules concerning design                                   Title 29 - Special rules pertaining to
      contests ............................................... 72          public works concession ................. 104
   CHAPTER V - SPECIAL CONTRACT                                            Title 30 - Special rules for service
   AWARD PROCEDURE FOR ENTITIES                                            concessions ...................................... 104
   OPERATING IN THE WATER, ENERGY,                                         Title 31 - Simplified procedure ....... 105
   TRANSPORT AND POSTAL SERVICES                                           Title 32 - Rules applicable to design
   SECTORS ................................................. 74            contests ............................................ 105
      Title 11 - The scope of application of                           CHAPTER VII - SPECIAL CONTRACT
      this Chapter ........................................ 74         AWARD PROCEDURE APPLICABLE TO
      Title 12 - General rules concerning                              CERTAIN ORGANISATIONS
      special contract award procedures ...... 80                      OPERATING IN THE WATER, ENERGY,
      Title 13 - Open procedure .................. 82                  TRANSPORT AND
      Title 14 - Restricted and negotiated                             TELECOMMUNICATION SECTORS . 105
      procedures launched by a notice for                                  Title 33 - Scope of application of the
      invitation to participate ...................... 84                  chapter ............................................. 106
      Title 15 - Restricted and negotiated                                 Title 34 - General rules of special
      procedures invited by way of a periodic                              contract award procedure ................ 107
      indicative information notice ............. 86                       Title 35 - Open procedure................ 109



                                                                                                                                       1
           Title 36 - Restricted and negotiated                             CHAPTER IX - PROCEDURE OF THE
           procedures launched by a notice                                  ARBITRATION COMMITTEE FOR
           containing an invitation                                         PUBLIC PROCUREMENT, JUDICIAL
           to participate ................................... 1109          REMEDIES CONCERNING ITS
           Title 37 - Restricted and negotiated                             RESOLUTIONS ..................................... 121
           procedures announced in a notice                                    Title 48 - General provisions ........... 121
           containing an indicative periodic                                   Title 49 - Public procurement
           information notice ............................ 110                 commissioners ................................. 122
           Title 38 - Restricted and negotiated                                Title 50 - Procedure of the Arbitration
           procedures announced in a                                           Commission for Public Procurement 123
           prequalification notice ...................... 110                  Title 51 - Review of decisions of the
           Title 39 - Negotiated procedure without                             Arbitration Committee for Public
           the prior publication of a                                          Procurement..................................... 131
           tender notice ..................................... 111          CHAPTER X - CIVIL ACTIONS
           Title 40 - Framework agreement                                   RELATED TO PUBLIC
           procedure .......................................... 111         PROCUREMENT .................................. 132
           Title 41 - Simplified procedure ........ 111                     CHAPTER XI - GENERAL
           Title 42 - Rules applicable to design                            CONCILIATION.................................... 133
           contests ............................................. 112          Title 52 - Scope of application and
                                                                               purpose of conciliation procedures .. 133
PART FOUR - PROVISIONS APPLICABLE                                              Title 53 - Conciliators and their
TO PUBLIC PROCUREMENT BELOW THE                                                activities .......................................... 133
NATIONAL VALUE THRESHOLD ............ 112                                      Title 54 - The conciliation
      Title 42 - Scope of application of Part                                  procedure ......................................... 136
      Four .................................................. 112           CHAPTER XII - SPECIAL
      Title 44 - Regular public contract award                              CONCILIATION.................................... 138
      procedure .......................................... 114              CHAPTER XIII - PROCEDURE OF THE
      Title 45 - Rules applicable to regular                                EUROPEAN COMMISSION .............. 1397
      design contest procedure .................. 116
                                                                        PART EIGHT - THE PUBLIC
PART FIVE - AMENDMENT AND                                               PROCUREMENT COUNCIL ...................... 139
PERFORMANCE OF CONTRACTS
CONCLUDED PURSUANT TO A PUBLIC                                          PART NINE - FINAL PROVISIONS ......... 150
CONTRACT AWARD PROCEDURE, AUDIT
OF PUBLIC PROCUREMENT.................... 116                           ANNEXES
      Title 46 - Amendment and performance
      of contracts ....................................... 116                   Annex 1 to Act CXXIX of 2003 on
      Title 47 - Audit of public contract                                        Public Procurement……………….154
      award procedures ............................. 118                         Annex 2 to Act CXXIX of 2003 on
                                                                                 Public Procurement……………….158
PART SIX - ATTESTATION ....................... 119                               Annex 3 to Act CXXIX of 2003 on
                                                                                 Public Procurement……………….164
PART SEVEN - JUDICIAL REMEDIES                                                   Annex 4 to Act CXXIX of 2003 on
AVAILABLE FOR PUBLIC                                                             Public Procurement……………….166
PROCUREMENT .......................................... 120                       Annex 5 to Act CXXIX of 2003 on
   CHAPTER VIII - GENERAL                                                        Public Procurement……………….167
   PROVISIONS APPLICABLE TO                                                      Annex 6 to Act CXXIX of 2003 on
   JUDICIAL REMEDIES .......................... 121                              Public Procurement……………….167




2
             Act CXXIX of 2003
           on Public Procurement*
                                                     CXXIX of 2003 on Public Procurement, with
                                                     Act XXIX of 2005 on the Amendment of Act
With a view to providing for transparency and        CXXIX of 2003 on Public Procurement and of
extensive public control in the reasonable use of    Act XXXVIII of 1992 on Public Finances, with
public monies, furthermore with a view to            Act LXXVI of 2005 on the Amendment of
ensuring the fairness of competition in the course   Relevant Law in Relation with Supplying of
of public procurement, in accordance with            Data in Construction Engineering Activities,
applicable     international   agreements     and    with Act XCIV of 2005 on the Amendment of
European Community legislation in the field of       Act CXXIX of 2003 on Public Procurement,
public procurement, the Parliament hereby            with Act LXVIII of 2005 on the Amendment of
adopts the following Act:                            Act LVII of 1996 on Prohibition of Unfair
                                                     Market Practices and Freedom of Competition,
                  PART ONE                           with Act LXXXIII of 2005 on the Amendment
                                                     of Law in Relation of the enactment of Act CXL
               GENERAL PART                          of 2004 on General Rules of Administrative
                                                     Procedure and Service, with Act CLXXII of
                  CHAPTER I                          2005 on the Amendment of Act CXXIX of 2003
                                                     on Public Procurement, with Act LVII of 2006
             BASIC PROVISIONS                        on Central State Administrative Organs and the
                                                     Legal Status of the Members of the Government
                   Principles                        and State Secretaries, with Act LVIII of 2006 on
                                                     the Amendment of Act CXXIX of 2003 on
                    Article 1                        Public Procurement, with Act LXV of 2006 on
                                                     the Amendment of Act XXXVIII of 1992 on
1. In the course of the contract award               Public Finances and other Related Acts, with
procedure, including the conclusion of the           Act CIX of 2006 on the Amendments Connected
relevant contract, the contracting authority shall   to the Reform of the Governmental Structure,
be obliged to ensure the fairness and public         with Act CXXI of 2006 on the Amendment of
nature of the competition, which the tenderer        Certain Acts Supporting the Budget of 2007 of
shall be obliged to respect.                         the Hungarian Republic, with Act CXXXV of
                                                     2006 on the Amendment of Act CXXIX of 2003
2. The contracting authority shall make sure         on Public Procurement and with Act LXXVIII
that tenderers are given equal opportunities and     of 2007 on the Amendment of Certain Acts with
equal treatment.                                     the Aim to Achieve a Reduction of the Go-round
                                                     Debt of Businesses (amendments are highlighted
3. In the course of the contract award               in bold characters) considering Article 78 (7) of
procedure, national treatment shall be applied to    Act I of 2004 on Sports, Article 37 (2) (a) of Act
tenderers established in the European Union as       CXX of 2004 on Necessary Changes in the
well as to Community goods. As regards               Competence and the Scope Of Duties of
tenderers established outside the European Union     Ministers, Article 72 (5) (m) of Act CXIV of
and as regards non-Community goods, national         2005 on the Amendment of Relevant Law in
treatment is to be applied in accordance with the    Relation to Election of Local Representatives of
international obligations assumed by the             Minority and on National and Ethnic Minority,
Republic of Hungary and the European                 Article 21 (4) (h) of Act CXXX of 2005 on the
Community in the field of public procurement. 1      Amendment of the Law of Civil Procedure,
                                                     Article 3 (1) of Act XXXVII of 2007 on the
*In a single composition with the provisions set     Amendment of Act LIX of 1993 on Deputy
out in Article 23 of Act LV of 2004 on the           Commissioner for Civil Rights, Article 2 point
Amendment of Act XXXV of 2001 on Electronic          651 and Article 13 (1) point 55 of Act LXXXII
Signature, with Act XCVII of 2004 on the             of 2007 on the Abolition of Certain Acts and
Amendment of Act CXXIX of 2003 on Public             Provisions and Article 56 (2) point c and Article
Procurement, and on the Amendment of                 58 (2) point c of Act CVI of 2007 on State
Relevant Law in Relation to Public Procurement,      Property, furthermore Article 23 (2)-(4) and
with Act IX of 2005 on the Amendment of Act          Article 25 point n) of Act CLII of 2007 on


                                                                                                     3
                                                         law for implementing a public task or a
              The scope of the Act                       public service, or for organizing such
                                                         implementation, under the condition if
                    Article 2
                                                     (b) at least 90% of the annual net revenue of
1. This Act shall apply to contract award                that economic operator is derived from a
procedures that entities, defined as contracting         contract concluded with the single member
                                                         (shareholder) contracting authority. The
authorities, are obliged to carry out in order to        counter value of public services provided to
conclude contracts for pecuniary interest with a         third parties on the basis of the contract shall
view to realising purchases of specific subject          be regarded as deriving from the contract
and value (public procurement). This Act shall           regardless whether this counter value is paid
also apply to the special rules for remedies             by the contracting authority or by the person
related to public procurement.                           using this public service.

2. As regards public contracts of a value            2. The provisions set out in paragraph 1 shall
reaching or exceeding the value thresholds laid      be applicable if in the economic operator,
down by the European Community (hereinafter          according to paragraph 1 point (a), the business
referred to as ‘Community thresholds’), Part         stake or shares that personify the membership
Two of this Act shall be applicable, as regards      rights are jointly owned by several organizations
public contracts with a value below the              that qualify as contracting entities according to
Community thresholds but reaching or exceeding       Article 22 (1); in this case the rights shall be
the national thresholds, Part Three shall be         exercised through a joint representative.
applicable, while in case of public contracts with
a value below the national thresholds Part Four      3. The provisions set out in paragraph 1 shall
shall apply, unless provided otherwise herein.       be applicable if the economic operator according
                                                     to point (a) of paragraph 1 is owned by the state;
3. In addition to being governed by applicable       in this case the additional conditions according to
legislation, specific design contest procedures      point (a) of paragraph 1 shall be applicable with
shall be subject to this Act as well.                relation to the legal entity (the minister, or in
                                                     case of the director of a national authority, the
4. With respect to entities (persons) applying       authority managed by the director2) as a
this Act voluntarily, all regulations set forth      contracting entity.
herein shall be applicable.
                                                     4. If law shall not set out different provisions
                   Article 2/A                       the contract shall be concluded for a definite
                                                     term of time that shall not be more than three
1. For the purposes of Article 2 (1) an              years; the contract may be extended without a
agreement shall not be considered a contract         public procurement procedure if the conditions
                                                     set out in paragraph 1 shall be fulfilled.
(a) that is concluded between a contracting
    authority according to Article 22 (1) and an     5. The contracting entity shall prepare at least
    economic operator 100 % owned by that            once in every three years, with the input of an
    authority, over which the contracting            independent expert, an impact analysis that shall
    authority fully possesses comprehensive          review the experience of the execution of the
    management and supervisory rights in             contract as set out in paragraph 1, the quality and
    relation to strategy and management tasks,       efficiency (direct and indirect costs) of the
    with consideration to the liability set out in   economic activity performed in the context of
                                                     implementing the public task or public service,
Certain Obligations of Declaration of Property       and whether the voluntary public procurement
(the latter highlighted in bold letters).            procedure, conducted according to Article 2
                                                     paragraph 4 was justified or not.
1
 See: Collective Informative Notice 8001/2007.
(MK. 102.) KüM-IRM of the Minister of Justice
                                                     2
and Minister of Foreign Affairs                       This provision entered into force on 1 January
                                                     2007.


4
       The nature of rules provided for in this Act           frequently recurring public procurement,
                                                              whose attributes concur with requirements
                        Article 3                             laid down by the contracting entity, and
                                                              which operates for a definite time period,
  Derogations from the provisions of this Act shall           during this time period entry into this system
  be allowed only in so far as such derogations are           may be requested by any tenderer that, or
  explicitly provided for by this Act.                        who meets compliance conditions, is not
                                                              under the force of a reason for exclusion,
                      CHAPTER II                              and has submitted prior an offer according to
                                                              the documentation;
                     DEFINITIONS
                                                         3.   ‘universal postal service’: a term as defined
                        Article 4                             in the Post Office Act;

  For the purposes of this Act the following terms     3/A.4 ‘electronic auction’: a repeated process
  shall be defined as follows:                               forming a part of the public procurement
                                                             procedure that, following the evaluation of
  1.    ‘tenderer’: any natural or legal person, any         tenders according to Article 81 (4), allow the
        company without legal personality or any             presentation of a new tender more
        entity which has legal capacity under its            favourable with respect to the amount of the
        personal right, who or which submits a               counter value, as well as to the specific
        tender in a contract award procedure;                substantial elements of the evaluation
        Hungarian branches of undertakings with a            criteria for the tender, together with ranking
        company seat registered in a foreign country         the tenders applying electronic means,
        shall also be considered tenderers;                  automatically;

  2.    ‘subcontractor’: an organization or person     3/B.   ‘electronic telecommunication service’: a
        with which the tenderer intends to sign or            term as defined in the Act on electronic
        modify a contract with the specific purpose           telecommunications;
        of delivering a contract concluded in a
        public contract award procedure, unless such   3/C.   ‘electronic means’: application of wired,
        organization or person performs its activity          wireless,     optical,    or   any   other
        on the basis of exclusive right.                      electromagnetic tools for data processing,
                                                              data storing, data forwarding;
2/A. ‘procurement related to fundamental
     security interests of the country’: any             4.   ‘European technical approval’: a favourable
     procurement directly linked to procuring                 technical assessment of the fitness for use of
     public works, to the supply of goods, and to             a product, based on fulfilment of the
     the provision of services, the subject-matter            essential requirements for building works,
     of which exercise an influence on the                    by means of the inherent characteristics of
     physical, environmental, health, economic,               the product and the defined conditions of
     home defense security of the population,                 application and use. The European technical
     including procurement in the benefit of                  approval shall be issued by an approval body
     preventing immediate flood damages in                    designated for this purpose by the Member
     times of flooding emergency alert                        State of the European Union;
     preparations;
                                                         5.   ‘European standard’: a term as defined in
2/B. ‘banking secret’: a term as defined in the Act           the Act on national standardization;
      on crediting institutions and financial
      undertakings;                                      6.   ‘European Union and Member States of the
                                                              European Union’: the European Economic
2/C.3 ‘dynamic procurement system’: a completely              Area and the states that are signatories to the
      electronic process for implementing                     Agreement on the European Economic Area,

  3                                                      4
   This provision entered into force on 1 January          This provision entered into force on 1 July
  2007.                                                  2006.


                                                                                                           5
       except in respect to Article 29 (1) (d) and           particular with regard to the counter value
       Article 175 (b).                                      and, if possible, the quantity envisaged;

  7.   ‘work’: a term as defined in the Act on the       13. ‘exclusive right’: any right granted on the
       Development and Protection of the Man-                basis of law or of administrative decision to
       made Environment;                                     a single entity (or person), or to a limited
                                                             number of entities (or persons) to perform a
  8.   ‘value analysis’: a method for decision-              specific activity or action, in accordance
       making, used to analyse the relationship              with the Treaty establishing the European
       between the function and the production or            Communities,      except    regarding     the
       implementation cost, purchase price and               application of Article 125 (2) (b) and of
       operating cost of the product, service or             Article 225 (1) (b), furthermore unless this
       public works;                                         Act shall not provide differently (Article
                                                             166);
  9.   ‘false data’ – false representation of a
       known fact;                                       14. ‘preparation of public contract award
                                                             procedure: completion of the activities
9/A . ‘network terminal point’: a term as defined            required for launching the relevant contract
      in the Act on electronic telecommunications;           award procedure, including in particular the
                                                             assessment and market survey relevant to
  10. ‘budgetary authority of a local government’:           the public contract in question, the
      mayor’s offices, local government offices at           assessment of the estimated value of the
      county level, clerks’ groupings, offices of            public contract and preparation of the tender
      joint boards of representatives of local               notice     launching    (announcing)      the
      government, as well as any other budgetary             procedure, and preparation of the invitation
      authorities supervised by the board of                 to tender and tender specifications;
      representatives of a local government,
      including associations of local authorities for    15. ‘technical      specifications    for     public
      official administrative purposes, for                  procurement’: the entirety of the technical
      institutional cooperation, or any other                prescriptions contained, in particular, in the
      associations of an administrative nature;              tender documentation needed for submitting
                                                             tenders, that defines the characteristics
  11. ‘relative’: any person as defined in Article           required by the subject-matter of a public
      685 (b) of the Act IV of 1959 on the Civil             contract, permitting the subject-matter of a
      Code (hereinafter referred to as the ‘Civil            public contract to be described in a manner
      Code’);                                                that it shall fulfill the purpose required by
                                                             the contracting authority; the technical
11/A. ‘in written form, in writing’: any form of             prescriptions shall include the definitions of
      expression constituted of words or digits that         environmental performance, of appropriately
      can be read, and be reproduced and as such             developing every requirement - in particular
      may be circulated; it may contain data stored          the criteria of equal access to the services by
      and        communicated         electronically,        handicapped       persons,     including     the
      particularly declarations delivered in a letter,       requirements applicable to the subject matter
      a cable, by telex machine, and by fax, and,            of a public contract as regards terminology,
      furthermore, declarations incorporated in              symbols, testing and test methods,
      electronic documents supplied with an                  packaging, marking, labeling, users’
      electronic signature that has a graded                 manuals, manufacturing processes and
      security level;                                        methods; in the case of public works these
                                                             shall also include rules relating to quality
  12. ‘framework agreement’: an agreement                    assurance, to design and to costing, the
      between one or more contracting authorities            conditions for testing, inspecting and
      and one or more tenderers, the purpose of              accepting the works, the construction
      which is to establish the substantial terms            methods and technologies, and all other
      and conditions governing the public                    technical conditions, which the contracting
      contracts to be signed between the parties in          authority is in a position to prescribe through
      a specific manner during a given period, in            general or specific requirements pertaining



  6
       to the works completed and the material and
       parts incorporated; in case of supply of                (b) it alone controls the majority of the
       goods or provision of services these shall                  votes, pursuant to an agreement it has
       also contain requirements related to quality,               concluded with other members
       performance, the purpose of the product in                  (shareholders) or secured in any other
       question, and to the appropriate liability                  manner,
       certification system;
                                                               (c)   as a member (shareholder) it is entitled
16. ‘activities of general interest’: activities in                  to elect (appoint) or recall more than
    the public interest within the meaning of the                    half of the entity’s chief officers
    Act on Organisations Operating in the                            (managers) or members of the entity’s
    Public Interest, as well as other activities                     supervisory board (supervisory body).
    having the purpose of meeting needs in the
    general interest or public service activities;         23. ‘restricted procedure’: a contract award
                                                               procedure whereby only those invited by the
17. ‘common technical specification’: a                        contracting authorities – in accordance with
    technical specification laid down in                       the provisions herein – may submit tenders;
    accordance with the procedure recognized
    by the Member States of the European                 23/A. ‘technical recommendation’: any document
    Union, and that has been published in the                  issued by the European Standardization
    Official Journal of the European Union;                    Organization that is not a standard, that has
                                                               been developed in course of a regulated
18. ‘Community goods’: a term as defined in                    procedure, in order to satisfy requirements
    Council Regulation 2913/92/EECon the                       of the market;
    Community Customs Code;
                                                           24. ‘national standard’: a term as defined in the
19.5                                                           Act on National Standardization;

20.6 ‘central budgetary authority’: Ministries,          24/A. ‘international standard’: a term as defined
     authorities having a separate budget heading              in the Act on National Standardization;
     in the central budget, as well as other bodies
     with budget heading rights stipulated in              25. ‘international organisation’: a legal entity
     separate act of legislation, furthermore any              under international law, constituted by an
     budgetary authority operating under the                   international agreement, which has a
     supervision of either of the former entities,             permanent organisational structure operating
     the Government or a designated member                     with a specific purpose and the scope of
     thereof;                                                  activities of which covers more than one
                                                               state;
21. ‘instrument of constitution’: an instrument
    required by law for the constitution of a              26. ‘open procedure’: a contract award
    company or firm (organisation) with or                     procedure whereby all those interested may
    without legal personality;                                 submit tenders;

22. ‘dominant influence’: it can be exercised by           27. ‘public     electronic    telecommunication
    an entity which meets at least one of the                  service’: a service normally provided to
    following conditions in relation to another                other parties in exchange for certain fees and
    entity:                                                    charges, comprised fully or predominantly
                                                               of the transmission of signals via public
       (a)   it alone controls the majority of the             electronic telecommunication networks and,
             votes of members (shareholders) by                where applicable, the management thereof;
             virtue of its share owned in that entity,         such services however, shall not include
                                                               services providing contents transmitted
5
  This provision is not in force from 1 January                using public electronic telecommunication
2007.                                                          network and electronic telecommunication
6
  This provision entered into force on 1 January               services, or exercising editorial control over
2007.                                                          such contents, furthermore they shall not



                                                                                                           7
      include such services associated with the                (f)   logistics services concerning postal
      information society defined in other legal                     parcels (services combining physical
      acts that do not principally involve the                       delivery or warehousing with other
      transmission of signals via public electronic                  non-postal functions);
      telecommunication networks; such services
      moreover     exclude    broadcasting      and      31. ‘candidate’: any natural or legal person, any
      programme distribution services;                       company without legal personality or entity
                                                             which has legal capacity under its personal
  28. ‘public    electronic   telecommunication              right, who or which seeks an invitation to
      network’: a term as defined in the Act on              take part in the first stage, that of
      Electronic Telecommunication;                          participation, of a contract award procedure
                                                             consisting of two stages; Hungarian
  29. ‘tax authority at the local government’: as            branches of undertakings with a company
      defined in the Act on the Order of taxation;           seat registered in a foreign country shall also
                                                             be considered candidates;
  30. ‘participant in a design contest’: any natural
      or legal person, company without legal             32.
      personality or entity which has legal
      capacity under its personal right, who or          33. ‘standard’: a term as defined in the Act on
      which submits a tender in a design contest             National Standardization;
      procedure;      Hungarian      branches     of
      undertakings with a company seat registered      33/A.7‘organization possessing social employment
      in a foreign country shall also be considered          permit’: a term as defined in the
      as participants in a design contest;                   Government Decree, containing the rules
                                                             concerning the granting of permission for
30/A. ‘postal services’: a term as defined in the            and the exercising of supervision over social
      Act on Postal Services, under the condition            employment, and/or applying for social
      that the weight limits defined thereto shall           employment support and supervising the use
      not be applicable;                                     of such support, which is issued on the basis
                                                             of the Act on Social Management and Social
30/B. ‘services differing from postal services’:             Care,;

      (a)   mail-service management services             34. ‘aid/support’: the granting of funds or other
            (mail management services both                   pecuniary benefits to the contracting
            preceding and subsequent to dispatch);           authority for the performance of the public
                                                             procurement contract, excluding tax
      (b) added-value services linked to and                 incentives and the provision of guarantee;
          provided entirely by electronic means
          (including the secure transmission of          35. ‘negotiated procedure’: a contract award
          coded documents by electronic means,               procedure whereby contracting authorities
          address management services, and                   negotiate the terms of the contract with one
          transmission of registered electronic              or more of the tenderers of their choice, in
          mail);                                             compliance with the provisions herein;

      (c)   services concerning postal items not         36. ‘design contest’: a special form of tender for
            included in point 30/A (such as direct           design projects regulated in detail in
            mail bearing no address);                        separate legislation, whose purpose is to
                                                             prepare design activities and to select the
      (d) financial services as defined in Group 6           designer based on the tendered designs;
          of Annex III, and point (b) in Article
          174, including in particular postal          36/A. ‘competitive     dialogue’:     a     public
          money orders and postal giro transfer              procurement procedure, in which the
          intermediary activities;                           contracting authority shall conduct with the

      (e)   philatelic services;                         7
                                                          This provision entered into force on 1 January
                                                         2007.


  8
      candidates they select according to the
      provisions in this Act, a dialogue the aim of    3. A plan shall not entail any obligation to
      which shall be to identify exactly the           carry out the procedures for the award of
      subject-matter of the public procurement,        contracts included therein. Moreover, contracting
      and/or the type of and the conditions for the    authorities may carry out procedures for the
      relevant contract, within the frame of           award of contracts not included in the
      conditions as defined by the contracting         procurement plan or for the award of contracts
      authority;                                       that have been modified as compared to what the
                                                       plan contains, provided that a need for public
36/B.8 ‘sheltered employer, and/or organization        procurement or other changes have occurred for
      having concluded a sheltered organization        reasons unforeseeable by them. In such cases the
      contract’: a term as defined in the              public procurement plan shall be amended upon
      Government Decree on budgetary support           the occurrence of such a need or changes,
      provided     for  the   employment     of        indicating the justification thereof.
      handicapped employees, and on the
      accreditation of employers employing             4. Contracting authorities shall, upon request,
      handicapped employees, and on the rules          forward their public procurement plans to the
      concerning the supervision of accredited         Public Procurement Council or to the competent
      employers;                                       control bodies.

  37. ‘business secret: a term as defined in Article                        Article 6
      81 (2) and (3) of the Civil Code.
                                                       1. Contracting authorities shall be obliged to
                   CHAPTER III                         determine, in accordance with the relevant
                                                       legislation, the distribution of responsibilities for
   COMMON PROVISIONS CONCERNING                        the preparation, carrying out and internal control
  PUBLIC PROCUREMENT AND CONTRACT                      of their contract award procedures, as well as the
          AWARD PROCEDURES                             responsibilities of persons and organisations
                                                       acting on their behalf or involved by them in
  Planning and preparation of public procurement       such procedures and the documenting procedure
          and contract award procedures                applicable to their contract award procedures. In
                                                       this scope, contracting authorities shall specify in
                      Article 5                        particular the person, persons or bodies
                                                       responsible for decisions made in the course of
  1. The contracting authorities defined in            the procedure.
  Article 22 (1) – with the exception of contracting
  authorities acting under Chapters V and VII and      2. Where a contracting authority does not have
  entities authorised to publish tenders in the        any general rules on public procurement drawn
  course of centralised public procurements – shall    up according to paragraph 1 or fulfils the criteria
  draw up, at the beginning of the budgetary year,     that allow derogation from such rules as laid
  preferably by 15 April, an annual overall public     down therein, it shall lay down the requirements
  procurement plan (hereinafter referred to as         set forth in paragraph 1 before the preparatory
  ‘public procurement plan’), which shall outline      work for the given contract award procedure at
  all public procurements envisaged for given year.    the latest.
  The public procurement plan shall be retained by
  the contracting authority for a period of at least   Documentation of the contract award procedure
  five years. Public procurement plans are public.
                                                                            Article 7
  2. The contracting authority may launch
  contract award procedures prior to the               1. Contracting authorities shall be obliged to
  completion of its public procurement plan, such      arrange for the documentation in writing of each
  procedures shall be subsequently included in the     of their contract award procedures, covering such
  public procurement plan as appropriate.              procedures from the preparatory work up to the
                                                       performance of the contract concluded on the
  8
   This provision entered into force on 1 January      basis of such procedures.
  2007.


                                                                                                          9
2. Contracting authorities shall retain all           contracting authority. The work of the evaluation
documents created in the course of the                committee shall be documented by drawing up
preparation and carrying out of the contract          minutes, such minutes containing the members’
award procedure and the performance of the            reasoned evaluation sheets.
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                                Article 9
documents shall be kept until such a procedure is
concluded with a judgement which has the force        1. For public procurement of a value reaching
of res judicata, but at least for five years as set   or exceeding the Community threshold (Second
out above.                                            Part), and/or when the competitive dialogue is
                                                      applied and the value of the procurement equals
3. Contracting authorities shall, upon request,       or exceeds the national threshold (Third Part,
forward the public procurement documents to the       Title 25/A), the contracting authorities, with the
Public Procurement Council or to the competent        exception of organizations authorized for
control bodies or to other competent bodies.          inviting    tenders    in     centralized    public
                                                      procurement, shall involve in the contract award
  Rules related to persons and organisations          procedure an official public procurement
acting in the name of a contracting authority or      consultant (Article 11) listed on the registry kept
    involved in a contract award procedure            by the Council for Public Procurement,
                                                      complying at the same time with the
                    Article 8                         requirements as set forth in Article 10 (1) and
                                                      (2).
1. Persons or organisations acting in the name
of a contracting authority or involved in a           2. The official public procurement consultant
contract award procedure who or which take part       shall contribute public procurement expertise to
in the preparatory work for the contract award        the preparation and to the implementation of the
procedure, the preparation of the invitation and      contract award procedure. The contracting
the tender specifications, the evaluation of          authority shall involve the public procurement
tenders or in any other stages of the procedure,      consultant in particular in the preparation of the
shall be required to possess adequate                 invitation to tender and of the tender
professional competence in the fields of public       documentation. The official public procurement
procurement and finance relevant to the subject       consultant, and/or in the case of an official public
of the public procurement.                            procurement consultant according to Article 11
                                                      (3), the person named from the list in the registry
2. An organisation acting in the name of a            kept by the Public Procurement Council,
contracting authority or involved in a contract       complying with the provisions of Article 11 (2),
award procedure shall be deemed as fulfilling the     shall personally participate in executing the
requirement contained in paragraph 1 if at least      duties falling to the public procurement
one person possesses adequate professional            consultant. The public procurement consultant
competence from among those who are members           shall be entitled to remuneration for his activity.
or employees of the organisation and personally       The       consultant’s     liability    concerning
contribute to the activities thereof, or from         compensation for damages caused by his activity
among those acting on behalf of such                  shall be governed by the Civil Code.
organisations on the basis of a permanent
contract under civil law concluded therewith.         3. A public procurement consultant who is
                                                      involved in the procedure may not act as a
3. Contracting authorities shall set up an            conciliator (Article 353) or an attester (Article
evaluation committee of at least three members        309) in relation to the same contract award
for the evaluation of the tenders submitted,          procedure.
which shall put forward in writing an expert’s
opinion and a proposal for a decision for the                             Article 10
person or body making the decision closing the
contract award procedure in the name of the



10
1. Participation in the preparatory work for the        5. This Article shall not be applicable if, on
contract award procedure, in the preparation of         the basis of law, or of a local government decree
the invitation and tender specifications or in any      issued on the basis of a law, in the contracting
other stage of the procedure, by acting in the          authority in question the same body, or a body
name of the contracting authority or being              whose members are, or some are the same, has
involved otherwise, shall not be permitted to           authority to exercise ownership rights and to
economic operators carrying out economic                bring a decision concerning the contract award,
activities related to the subject of the public         and in the activities concerning the public
procurement in question (hereinafter referred to        procurement procedure – besides the decision
as ‘interested economic operators’), or to any          ending the procedure – no one has participated,
such person or organisation who or which                who is entitled to exercise ownership rights.

(a) is engaged in an employment relationship or         6. In the application of this Article a person
    in a working relationship of any other kind         (organization) shall not be considered as having
    with the interested economic operator;              been involved in the preparations for a public
                                                        procurement procedure from whom or from
(b) is a chief officer of the interested economic       which the contracting authority:
    operator or is on its supervisory board;
                                                        (a) with the aim to assess the situation, or the
(c) owns a share in the interested economic                 market position concerning the public
    operator;                                               procurement in question, without indicating
                                                            the date when the public procurement will
(d) is a relative of any of the persons referred to         start,   requested information providing
    in points (a) to (c).                                   exclusively the data needed for the
                                                            assessment, or
2. Paragraph 1 shall not apply if the interested
economic operator acting in the name of the             (b) received an offer needed for submitting a
contracting authority or envisaged to be involved           request (application) for support,
in the contract award procedure or, as the case
may be, the interested economic operator having         under the condition that in the context of point
a relationship as specified under paragraph 1 (a)       (a) and point (b) the contracting authority has not
to (d) with the person or organisation envisaged        provided any information exceeding the
to be involved in the procedure, makes a written        framework of the data, which was provided for
declaration to the effect that it shall not take part   all tenderers (candidates).
in the procedure concerned as a tenderer or a
subcontractor.                                          7. The person acting on behalf of the
                                                        contracting authority, and/or the person or
3.                                                      organization involved in the procedure shall
                                                        provide a declaration concerning a conflict of
4. Should a person exercise rights of ownership         interests with respect to this Article. In the cases
in the name of the contracting authority in any         provided for in paragraph 2 or paragraph 4, the
interested economic operator, such person or his        declaration of the concerned economic operator
relatives shall not act in the name of that             that he is not participating either as tenderer or as
contracting authority in the course of the              sub-contractor in the procedure (nonappearance
preparatory work or any other stage of the              declaration) shall be attached to the declaration
contract award procedure, except where the              concerning a conflict of interests.
interested economic operator concerned declares
in writing that it shall not take part in that          8. In case there shall be an infringement of
procedure as a tenderer or a subcontractor. This        paragraphs 1, 4, or 7, or in spite of the
provision shall apply accordingly to chief              declaration provided according to paragraph 4
officers and supervisory board members of the           the concerned economic operator participates in
contracting authority as well as their relatives if     the public procurement procedure, in the course
the contracting authority owns a share in the           of the subsequent stages of the procedure the
interested economic operator.                           concerned economic operator shall not be either
                                                        tenderer or sub-contractor, who has relations
                                                        with persons and organizations under the



                                                                                                         11
provisions of or listed in paragraph 1, according
to points (a) to (d) of paragraph 1.                    6. Persons licensed to operate as attorneys at
                                                        law or legal counsels may also act as official
     The official public procurement consultant         public procurement consultants, provided that
                                                        they fulfil the criteria set out in this Article.
                    Article 11
                                                        7. Official public procurement consultants may
1. An official public procurement consultant is         only pursue the activities referred to in Article 5
a person who figures on the list of names of            (1)-(2) of Act XI of 1998 on Legal Practitioners
official public procurement consultants kept by         if they are otherwise authorised to pursue such
the Public Procurement Council (Article 380).           activities.

2. A person may be included in the list of                     Official list of approved contractors
names of official public procurement consultants
who holds a degree in higher education and has                              Article 12
at least three years of professional experience,
and in addition not less than three years of            1. The official list of approved contractors
experience in public procurement certified in           (hereinafter referred to as the ‘list’) shall be
accordance with relevant legislation, or with a         maintained by the Public Procurement Council
state-approved        professional   qualification      (Article 386–391).
together with at least two years of experience in
public procurement, certified in accordance with        2. Conditions for inclusion of tenderers in the
relevant legislation.                                   list (hereinafter referred to as ‘criteria for
                                                        approval’) and ways of certification of such
3. Any entity that has at least one person              registration shall be laid down and published in
among its members or employees, or among                the Public Procurement Bulletin by the Public
those acting in the name of the entity on the basis     Procurement Council pursuant to Article 60 (1)
of a permanent contract under civil law, which          (a)–(d) and (f)–(g), Article 61 (1), Article 63 (2),
fulfills the criteria set for the in paragraph 2, may   Articles 66–68 and Article 69 (1)–(3). When
also be registered in the official list of names of     laying down the criteria for approval, the Public
public procurement consultants.                         Procurement Council shall be entitled to choose
                                                        from the above-referred criteria.
4. Inclusion of persons, or in the case of an
entity according to paragraph 3 shall also be           3. In laying down the criteria for approval,
subject to the person or entity possessing liability    there shall be no discrimination of tenderers
insurance, the scope of which is specified in a         based on either their seat or their place of
separate act of legislation [Article 404 (2) (d)],      establishment, or in any other way.
unless they shall possess already a liability
insurance required by another act of legislation,                           Article 13
provided the extent of this is at least equal to that
extent set forth in the separate act of legislation.    1. Approved contractors are entitled to submit
                                                        in the course of the contract award procedure a
5. If a person, who is under a contract to work         certificate of registration issued by the Public
for a contracting authority, issues a declaration       Procurement Council. This certificate shall state
that he performs official public procurement            a reference to compliance with the criteria for
consulting activity exclusively for the                 approval and the classification given in that list.
contracting authority for who he is contracted to
work, it shall be sufficient for entering this          2. Contracting authorities shall accept the
person into the list of names of official public        certificate of registration in their contract award
procurement consultants if this person complies         procedures.
with the provisions set forth in paragraph 2, and
certifies his employment relations with the             3. Approved contractors shall be required to
contracting authority.9                                 furnish a separate certificate under Article 63 or
                                                        to make a declaration in writing stating that they
9
 This provision entered into force on 11 January        do not fall within the scope of Article 60 (1) (e)
2007.


12
and, if the contracting authority so prescribes,         date following that of the starting date; if the
within the scope of Article 61 (2).                      month of expiry does not contain such a date,
                                                         expiry shall take place on the last day of the
4. Approved contractors shall also be required           month.
to furnish a separate certificate concerning their
suitability to the fulfil the relevant contract if the   3. Where the closing date of the time limit is
contracting authority in its contract award              not a business day, expiry shall take place only
procedure or in the pre-qualification system             on the subsequent business day.
(Articles 215–219) lays down, pursuant to
Articles 65–69, such criteria concerning the             4. Time limits fixed in notices (invitations)
contractors’ financial and economic standing,            shall begin to run on the day following the date
technical capacity and professional qualification,       of dispatch of the relevant notice (invitation).
as well as for the certification thereof, that are
stricter than the criteria for approval laid down                   Annual statistical summary
pursuant to Article 12 (2). The contracting
authority shall make specific reference to the                              Article 16
above requirement in the notice (invitation).
                                                         1. Contracting authorities shall make an annual
                     Article 14                          statistical summary about their annual purchases,
                                                         based on a model specified in separate
1. Where an approved contractor established in           legislation, which they shall forward to the
the Republic of Hungary submits in a contract            Public Procurement Council not later than 31
award procedure launched by a contracting                May of the year following the year to date.
authority of another Member State of the
European Union a certificate of registration             2. The Public Procurement Council shall
issued by the Public Procurement Council, the            forward to the European Commission an overall
certificate shall constitute a presumption of            statistical report based on the annual statistical
suitability only as regards Article 60 (1) (a)–(d)       summaries and the notices not later than 31
and (f-h), Article 61 (1), Article 66 (1) (b)–(c),       October of the year following the year to date.
Article 67 (1) (a), (2) (a) and (d) and (3) (b).
                                                         3. Should any contractor fail to furnish its
2. Paragraph 1 shall apply as appropriate in             annual statistical summary by the expiry of the
cases, when a tenderer established in another            time limit set in paragraph 1, the Chairman of the
Member State of the European Union submits, in           Public Procurement Council shall invite such
a contract award procedure of a contracting              contractor to furnish its annual statistical
authority within the meaning of this Act, a              summary within thirty days and shall at the same
certificate issued by an authority, including            time advise the contractor that his failure to
assurance organizations delegated this task,             furnish the summary shall result in the ex officio
operating in the State where the tenderer is             procedure of the Arbitration Board for Public
established, responsible for keeping the list of         Procurement (Article 328).
qualified, or recognized tenderers.
                                                                 Centralised public procurement
             Calculation of time limits
                                                                            Article 17
                     Article 15
                                                         1. The       Government      may    order    the
1. Time limits or periods (hereinafter jointly           organisations under its control to execute any
referred to as ‘time limits’) expressed in days,         public procurement within the framework of a
months or years shall be calculated in such a            centralised procedure, determining the personal
manner that they do not include the starting date.       and material scope thereof, the organisations
The starting date shall be the date of the event or      entitled to invite tenders and the conditions to
other circumstance from which the time limit             participate in such a procedure.
begins to run.
                                                         2. A centralised procedure may be used for
2. A time limit expressed in months or years             health-care services of organisations financed by
shall expire on the day which corresponds to the         the Health Insurance Fund. The Government



                                                                                                        13
shall be entitled to specify the detailed rules for    3. The personal and material scope of, as well
the procedure, including the personal and              as the detailed rules for public procurement
material scope thereof and the organisations           procedures reserved according to paragraph 1
authorised to invite such tenders. Such                shall be set forth in a separate act of legislation.
centralised public procurements shall be financed
from the funds allocated in the budget of the          4. In the application of paragraph 1 contracting
Health Insurance Fund for the type of service in       authorities, also with consideration to the
question.                                              estimated value of the public procurement, shall
                                                       act in accordance with this Act and with the
3. The detailed rules pertaining to the                relevant separate act of legislation.
centralised public procurement procedure shall
be determined in separate legislation.                                   Article 17/B12

4. In the case of centralised public procurement       1.__Local government may implement public
procedure, the organisation entitled to invite         procurement concerning organisations under its
tenders shall act in compliance with this Act and      control in a locally centralized, combined
the above-mentioned separate legislation, also         manner.
taking into consideration the estimated value of
the centralised public contract.                       2.__The provisions of this Act shall apply to
                                                       locally   centralized   public   procurement
                                                       procedures.
     Public Procurement Reserved for Sheltered
                   Employers10                         3.__Local government shall promulgate a degree
                                                       on locally centralized public procurement that
                  Article 17/A11                       shall:

1. Contracting authorities, according to               (a)__appoint the organization exclusively
provisions set out in a separate act of legislation,   entitled to invite bids for locally centralized
may reserve the right to participate in a public       public procurement;
procurement procedure, or shall reserve this right
for organizations that are designated as sheltered     (b)__determine the scope of budgetary
employers, for organizations that have concluded       organizations under the effect of locally
a sheltered organization contract, furthermore for     centralized public procurement, together with the
organizations possessing a social employment           conditions for access to the procedure;
permit, which employ, in a proportion over 50
per cent, disabled persons who cannot carry out        (c)__determine the scope of goods and services
occupations under normal conditions, and for           under the effect of locally centralized public
organizations providing employment for inmates         procurement;
of social institutions in a framework of social
employment, providing work for handicapped             (d)__determine the rules for cooperation between
persons in a proportion over 50 per cent.              the organization exclusively entitled to invite
Contracting authorities shall refer to this fact in    bids and the organizations under the effect of
the invitation that starts the procedure.              locally centralized public procurement, in
                                                       particular the data provision obligations of the
2. In the case of contracts that are reserved          parties, and the manner in which the data is
according to paragraph 1, contracting authorities      supplied and managed;
shall ensure equal rights to tenderers established
within the European Union that provide                 (e)__determine the calculation of the fee, and the
employment in a proportion over 50 per cent to         way this fee is paid to the organization
disabled workers who cannot carry on                   exclusively entitled to invite bids for locally
occupations under normal conditions.                   centralized public procurement for only the
                                                       actually costs of the work on locally centralized
                                                       public procurement, and the obligation to
10
  This title entered into force on 1 January 2007.
11                                                     12
  This provision entered into force on 1 January         This provision entered into force on 1 January
2007.                                                  2007.


14
provide information and briefings for local            3. When the Act, or on the basis of this Act
government.                                            contracting authorities require the submission of
                                                       a certificate in the course of the public
                                                       procurement procedure, such a certificate may be
                 Other provisions                      submitted in a simple copy form. In the case of
                                                       public procurement equal to or exceeding
                    Article 18                         community, or national thresholds (Parts Two
                                                       and Three), contracting authorities may also
Contracting authorities, with the exception of         request the submission of the certificate in the
those referred to in Article 22 (2), Article (241)     form of an attested copy.
(b)-(c) and Article 293 (b), shall notify the Public
Procurement Council of their debts falling under       4. In case the certificate required by this Act is
the scope of this Act within thirty days following     non-existent in the country outside the European
the date when this Act enters into force pursuant      Union where the tenderer is established,
to Article 401 (1) or the date from which such         contracting authorities may accept a certificate,
contracting authorities come under the scope of        and even a document that is equal to the
this Act. The Public Procurement Council shall         certificate.
maintain a register of such contractors and
publish it on its website, and shall provide           5. In notices regarding public procurement and
further information about the register of              design contests, in the annual consolidated
contractors as required by the European                statistical reports- considering the provisions of
Commission. Organisations not included in the          this Act, as well as of the separate act of
register but falling under the scope of this Act       legislation concerning templates for public
may be reported to the Public Procurement              procurement and design contest notices, on
Council by any person or body.                         evaluation summaries, and on annual statistical
                                                       aggregations – the Common Procurement
                   Article 1913                        Vocabulary (in the following: CPV) shall be
                                                       applied in defining the nomenclature position for
The Minister of Foreign Affairs, the Minister          the subject matter of the procurement (contract).
without Portfolio Responsible for the Co-
ordination of European Integration and the             6. CPV, and conformity between CPV and
Minister of Justice shall issue an information         other nomenclatures, is provided by a Regulation
notice about international contracts concluded         of the European Communities.
according to Article 1 (3).14 The information
notice shall also be published in the Public
Procurement Bulletin.                                                    PART TWO

                                                           PROVISIONS RELATED TO PUBLIC
                    Article 20                               PROCUREMENTS REACHING
                                                             COMMUNITY THRESHOLDS
1. The procedural actions may also be carried
out electronically, subject to the criteria laid                        CHAPTER IV
down in this Act and in separate legislation.
                                                         CONTRACT AWARD PROCEDURES IN
2. Where this Act prescribes that the contract                     GENERAL
award procedure must be formally recorded, this
criterion may also be fulfilled by recording the                            Title 1
actions in a public instrument, provided that the
actions take place in the presence of a notary            The scope of application of this Chapter
public.
                                                                      General provisions

13
   See: Collective Informative Notice 8001/2007.                          Article 21
(MK. 102.) KüM-IRM
14
   This provision entered into force on 1 January
2007.


                                                                                                      15
1. Entities (contracting authorities) specified in          management of the separate state fund,
Article 22 shall act in accordance with this                budgetary authorities for social insurance set
Chapter where                                               up by the State;

(a) the value of their public procurement             (c) national associations of local governments
    covering a given subject equals or exceeds            of minorities, budgetary authorities set up by
    the Community threshold concerned at the              national associations of local governments
    beginning of the public procurement;                  of minorities;

(b) they conduct a design contest procedure           (d) local governments, local governments of
    (Title 10) whose value according to Article           minorities,     associations   of     local
    33 equals or exceeds the Community                    governments, the organization appointed by
    threshold concerned at the beginning of the           local government to exclusively invite bids
    procedure;                                            for locally centralized procurement15,
                                                          budgetary authorities set up by local
(c) they conduct activities other than those              governments or by local governments of
    specified in Article 163, if they meet the            minorities,     associations   of     local
    requirements provided by Article 22 (1).              governments for the purpose of regional
                                                          development, county councils for regional
2. As regards public works concessions, the               development, development councils at area
specific rules contained in Title 8 shall also            or regional levels;
apply.
                                                      (e)
3. As regards services specified in Annex 4, a
simplified procedure may be applied (Title 9).        (f) public foundations;
These provisions shall not apply to services
specified in Annex 3. However, in the case of         (g)16    the Central Bank of Hungary, the
public procurements which have as their object a           Hungarian State Asset Management
service which includes both a service specified in         Company17, the Hungarian Development
Annex 3 and a service specified in Annex 4, a              Bank Ltd., MTI Ltd. (the Hungarian News
simplified procedure may be applied, provided              Agency), public service broadcasters,
that the value of the service specified in Annex 4         moreover      broadcasters    of     public
exceeds the value of the service specified in              programmes whose operation is financed
Annex 3 at the beginning of the public                     from the State budget or from budget
procurement.                                               resources of local governments to an extent
                                                           exceeding 50 %, furthermore the National
4. The provisions of Chapter V shall apply                 Radio and Television Commission;
where public procurements or design contests are
related to sectors or activities specified therein,   (h) entities having a legal capacity and set up by
including exceptions under Chapter V.                     virtue of an act of legislation that provides
                                                          for their duties, the rules concerning its
             Contracting authorities                      control, supervision and operation, provided
                                                          that either one or more entities (bodies)
                    Article 22                            specified in points (a) to (g) of this
                                                          paragraph, or Parliament or the Government
1. For the purposes of this Chapter, the                  may exercise a dominant influence or whose
following entities shall be considered as                 operation is financed by one or more of
contracting authorities:                                  these bodies to an extent exceeding 50 %;

(a) ministries, the Prime Minister’s Office, the
    body authorised to invite tenders in a            15
                                                          This provision entered into force on 11
    centralised public award procedure;               January 2007.
                                                      16
                                                         This provision entered into force on 1 January
(b) the State, central budgetary authorities set up   2008.
    by the State, other than those specified in       17
                                                          This provision entered into force on 25
    point (a), the entity responsible for the         September 2007


16
(i) entities having a legal capacity which were         associated services utilised by such credit
    set up to carry out, or which carry out, non-       institutions for their own purposes.
    industrial and non-commercial activities of
    general interest, over which either one or                  Subjects of public procurements
    more entities specified in this paragraph or
    Parliament or the Government can exercise a                             Article 23
    dominant influence or their operation is
    financed by one or more of these entities           Subjects of public procurements shall be the
    (bodies) to an extent exceeding 50 %;               following: public supply, public works, public
                                                        works concessions and public services, except
(j) entities having a legal capacity set up by one      for service concession [Article 242 (4)].
    or more entities specified in point (a) (i) of
    this paragraph (excluding the State) with a                             Article 24
    view to carry out the core activities of the
    aforementioned entity (entities), provided          Public supply contracts are contracts for
    that the relevant entity (entities) is (are) in a   pecuniary interest involving the acquisition by a
    position to exercise a dominant influence           contracting authority, with or without option to
    over such a legal entity;                           buy, of rights of ownership or right of use or of
                                                        exploitation of negotiable movable property
(k) economic operator according to Article 2/A          which can be possessed. Public supply contracts
    paragraph 1.                                        shall in addition include installation and putting
                                                        into operation.
2. For the purposes of this Chapter and for
those of public procurement to be carried out                               Article 25
using aid, entities not covered by paragraph 1
(with the exception of individual entrepreneur          1. Public works contracts are contracts for
and one-man companies) shall also be                    pecuniary interest having as their object one of
considered contracting authorities if                   the following types of work to be ordered (and
                                                        accepted) by a contracting authority:
(a) one or more entities specified in paragraph 1
    subsidize directly by more than 50 % the            (a) the execution, or both the execution and
    execution of the public works or related                design as defined in the relevant legislation ,
    services according to Article 25 (2) of such            of works related to one of the activities
    entities;                                               listed in Annex 1;

(b) the public procurement, for the purposes of         (b) the execution, or both the execution and
    this Chapter, of one or several entities                design as defined in the relevant legislation ,
    specified in paragraph 1 is supported                   of a work;
    directly and preponderantly by budgetary
    sources and by sources originating from the         (c) the execution, by whatever means and in
    European     Union,    or    directly  and              whatever manner, of a work corresponding
    preponderantly by sources originating from              to the requirements specified by the
    the European Union.                                     contracting authority concerned.

3. For the purposes of paragraph 1, the                 2. For the purposes of Article 22 (2) (a) work
assessment of whether an operation is financed          related to one of the civil engineering activities
to an extent exceeding 50 % shall be done at the        listed in Annex I, as well as the construction
beginning of the budgetary year, taking into            (building activities) of hospitals, facilities
account what is being envisaged for the year in         intended for sports, recreation and leisure,
question and by reference to the total foreseeable      buildings for educational purposes (schools,
revenue.                                                university buildings) or buildings used for
                                                        administrative purposes shall be considered as
4. Credit institutions considered contracting           public works.
authorities pursuant to paragraph 1 shall not be
considered as such for the purposes of financial                            Article 26
and associated services and investment and



                                                                                                        17
Public works concession is a public works                 the Treaty establishing        the   European
contract whereby the consideration by the                 Community;
contracting authority for the works to be carried
out consists either in the right to exploit the       (c) procurements awarded pursuant to a
construction for a specified period of time or in         particular procedure set out in an
this right together with payment.                         international   agreement,     or    in an
                                                          international memorandum of understanding
                                                          or cooperation if the contract or the
                                                          agreement relates to the stationing, passing
                    Article 27                            through, deployment of troops (military
                                                          forces), including in the case of units
Public service contracts are contracts for                deployed to the operational theatre the
pecuniary interest which are not covered by the           procurement related to such deployment
definition of public supply nor that of public            (transfer);
works and which have as their object an activity
in particular ordered by a contracting authority.     (d) procurements awarded pursuant to a
                                                          particular procedure laid down in an
                    Article 28                            international agreement which has been
                                                          concluded with a state outside the European
1. If the contract covers several subjects of             Union and covers supplies intended for the
public procurement interdependent by their                joint implementation or exploitation of a
nature, then such contract shall be classified            project by the signatory States;
according to the subject of public procurement of
determining value.                                    (e) procurements pursuant to a particular
                                                          procedure laid down by an international
2. If a public procurement has as its objects             organization
those specified in Articles 24 and 27 and if the
value of services covered by such a contract          (f) procurements exclusively for the purpose of
exceeds that of the supply covered thereby, the           providing contracting authorities with the
contract shall be considered a public service             possibility to provide one or more public
contract.                                                 electronic telecommunication services, or of
                                                          the use, or exploitation of a public electronic
                   Exceptions                             telecommunication network.

                    Article 29                        2. The procedure laid down in this Chapter
                                                      shall not apply to the services specified in Article
1. The procedure laid down in this Chapter            27 in the following cases:
shall not apply to
                                                      (a) contracts for the acquisition of existing
(a) procurements which concern a state secret or          buildings or other immovable property or for
    a service secret or the fundamental security          the acquisition of other rights on immovable
    and national security interests of the country,       property; except for contracts (concluded in
    or whose execution must be accompanied by             whatever form) for financial services
    special security measures, in respect of              associated with such contract for acquisition;
    which the competent committee of the
    Parliament has adopted a preliminary              (b) financial services specified in Annex III.
    decision to rule out the application of this          Group 6, in connection with the issue, sale,
    Act;                                                  purchase or transfer of securities and other
                                                          financial instruments, or with the acquisition
(b) procurements involving the acquisition of             of money or capital in the benefit of
    goods specifically designed for military and          implementing monetary, exchange rate, or
    public order purposes (arms, munitions and            reserve management policy, or of the debt
    war material) and service contracts in the            management policy of central government,
    field of defence which concern the                    and central bank activities;
    fundamental interests of the country’s
    security, in accordance with Article 296 of



18
(c) contracts for the acquisition, development,             where in the field of defence the products
    production or co-production of programme                not covered by Annex 2 are concerned. 19
    (programme material) by broadcasters and
    contracts for broadcasting time;                                      Article 31

(d)                                                    1. For the purposes of this Chapter the
                                                       threshold for public works contracts shall be an
(e) contracts for arbitration, mediating and           amount of 5.278.000 euros.20
    conciliation services;
                                                       2. For the purposes of this Chapter, the
(f) employment contracts, public service               threshold for public works concessions shall be
    relationships, legal status of public servants,    EUR 5.278.000.21
    public prosecutors, court employees, law
    officers and professional members of the                              Article 32
    armed forces;
                                                       For the purposes of this Chapter, the threshold
(g) research and development service contracts         for public service contracts shall be
    other than those where the benefits accrue
    exclusively to the contracting authority for       (a) An amount of euros equivalent to EUR
    its use in the conduct of its own affairs, on          137.000 in the case of contracting authorities
    condition that the service provided is wholly          specified in Article 22 (1) (a) where research
    remunerated by the contracting authority;              and development services covered in Annex
                                                           3 are concerned, except for services listed
(h) contracts for services which are provided by           under Heading 8 and telecommunications
    one of the contracting authorities specified           services 7524, 7525, 7526 listed under
    in Article 22 (1), or by an association they           Heading 5;22
    have established, on the basis of an
    exclusive right which they enjoy pursuant to       (b) An amount of euros equivalent to EUR
    law or regulation.                                     211.000 in the case of all other contracting
                                                           authorities specified in Article 22 (1) where
              Community thresholds                         research and development services covered
                                                           in Annex 3 are concerned, except for
                    Article 30                             services listed under Heading 8 and

For the purposes of this Chapter, the threshold
for public supply contracts shall be
                                                       19
                                                          Pursuant to the Regulation 1422/2007/EC (4
(a) an amount of euros equivalent to EUR               December 2007) of the European Commission
    137.000 in the case of contracting authorities     from 1 January 2008 EUR 206.000 (instead of
    specified in Article 22 (1) (a) and in the field   EUR 211.000), corresponding value in the
    of defence so far as the products covered by       national currency HUF 53.012.225
    Annex 2 are concerned;18                           20
                                                          Pursuant to the Regulation 1422/2007/EC (4
                                                       December 2007) of the European Commission
(b) an amount of euros equivalent to EUR               from 1 January 2008 EUR 5.150.000 (instead of
    211.000 in the case of all other contracting       EUR 5.278.000), corresponding value in the
    authorities specified in Article 22 (1) and (2)    national currency HUF 1.325.305.627
    (b), as well as in the case of contracting         21
                                                          Pursuant to the Regulation 1422/2007/EC (4
    authorities specified in Article 22 (1) (a)        December 2007) of the European Commission
                                                       from 1 January 2008 EUR 5.150.000 (instead of
                                                       EUR 5.278.000), corresponding value in the
                                                       national currency HUF 1.325.305.627
18                                                     22
  Pursuant to the Regulation 1422/2007/EC (4              Pursuant to the Regulation 1422/2007/EC (4
December 2007) of the European Commission              December 2007) of the European Commission
from 1 January 2008 EUR 133.000 (instead of            from 1 January 2008 EUR 133.000 (instead of
EUR 137.000), corresponding value in the               EUR 137.000), corresponding value in the
national currency HUF 34.226.339                       national currency HUF 34.226.339


                                                                                                      19
     telecommunications services 7524, 7525,         Procurement Council in the Public Procurement
     7526 listed under Heading 5;23                  Bulletin.

(c) EUR 211.000 in the case of services listed               The value of public procurements
    under Heading 8 and telecommunications
    services 7524, 7525, 7526 listed under                               Article 35
    Heading 5 in Annex 3, as well as in the case
    of research and development services listed      1. The value of a public procurement shall be
    in Annex 4;24                                    the highest consideration requested or offered in
                                                     general for its subject at the time of the
(d) EUR 211.000 in the case of services referred     beginning of the contract award procedure,
    to in Article 22 (2) (a) and of contracting      which is to be calculated net of VAT and taking
    authorities specified in Article 22 (2) (b).25   account of the provisions of Articles 36 to 40
                                                     (hereinafter referred to as ‘estimated value’). The
                   Article 33                        full consideration shall include the value of the
                                                     transfer of the buy option.
For the purposes of this Chapter (Title 10), the
threshold for design contests shall be               2. The public procurement shall be deemed to
                                                     commence on the date of dispatch of the notice
(a) one of the thresholds specified in Article 32    whereby the contract award procedure is started,
    (a) to (c) where the design contest concerned    or, in the case of a negotiated procedure without
    is organized as part of a procedure leading to   prior publication of notice, and in certain
    the award of a service contract;                 specified cases of a simplified procedure on the
                                                     date when the invitations are sent or – in the
(b) one of the thresholds specified in Article 32    event of procedures specified in Article 125 (2)
    (a) to (c) in the case of all design contests    (c) (Article 135) and in Article 147 (5) – the date
    where the contest prize and the total amount     of the commencement of the negotiation as
    of all payments to be made to participants       appropriate. This date shall govern the
    equals or exceeds these thresholds.              application of Article 40 (2) (a).

                   Article 34                        3. The estimated value of the public
                                                     procurement shall include the fees and payments
1. The value of the thresholds under Articles        (commission) payable by contracting authorities
30 to 33 and Article 42 (1)–(2) expressed in         to the candidates and the tenderers, if contracting
euros and in national currencies (in HUF) shall      authorities shall be fulfilling such payments to
be published in the Official Journal of the          candidates or to tenderers.
European Union for the subsequent two years.
                                                                         Article 36
2. The thresholds referred to in paragraph 1
shall also be published by the Public                1. In the case of supply contracts for the
                                                     acquisition of the right to use or to exploit
23
   Pursuant to the Regulation 1422/2007/EC (4        products, the estimated contract value shall be:
December 2007) of the European Commission
from 1 January 2008 EUR 206.000 (instead of          (a) in respect of fixed-term contracts, where
EUR 211.000), corresponding value in the                 their term is 12 months or less, the contract
national currency HUF 53.012.225                         value for its duration, or, where their term
24
   Pursuant to the Regulation 1422/2007/EC (4            exceeds 12 months, the contract value for its
December 2007) of the European Commission                duration including the estimated residual
from 1 January 2008 EUR 206.000 (instead of              value;
EUR 211.000), corresponding value in the
national currency HUF 53.012.225                     (b) in respect of contracts for an indefinite
25
   Pursuant to the Regulation 1422/2007/EC (4            period or where there is a doubt as to the
December 2007) of the European Commission                duration of the contracts, the monthly value
from 1 January 2008 EUR 206.000 (instead of              multiplied by 48.
EUR 211.000), corresponding value in the
national currency HUF 53.012.225


20
2. In the case the supply contract is constituted     2. For the purposes of calculating the estimated
of more than one parts, or shall be implemented       value of the services the following shall be taken
on the basis of more than one contracts, the          into account:
estimated value of every single part shall be
calculated together.                                  (a) in the case of insurance contracts: the
                                                          premium payable and other considerations;
                    Article 37
                                                      (b) in the case of banking and other financial
1. In the case of regular contracts or of                 services: fees, commissions, interest, and
contracts which are to be renewed periodically,           other considerations;
the estimated value of the supply or service
contract shall be:                                    (c) in the case of services including design: the
                                                          fee payable, or the commission and other
(a) either the value of contracts having the same         considerations.
    or similar subjects, concluded within the
    preceding fiscal year or 12 months, adjusted      3. If the services are constituted or more than
    according to the anticipated changes in           one parts, or if such are implemented on the
    quantity and value over the 12 months             basis of more than one contracts, the estimated
    following the initial contract,                   value of every single part shall be calculated
                                                      together.
or
                                                                        Article 38/A
(b) the value during the 12 months following the
    initial contract following the first delivery,    For the purpose of calculating the estimated
    or during the term of the contract(s), if it      contract value for the design contest account
    exceeds 12 months.                                shall be taken of the following:

2. In the case of a supply or service contract        (a) the fees or the commissions and also the
including an option clause, the estimated contract        other considerations payable to candidates if
value shall be the highest possible value of              a contract is awarded as the result of the
consideration inclusive of the purchase price.            design contest procedure;

3. If the public procurement concerns the             (b) as well as the estimated value of the services
procurement of both supplies and services, the            that shall be purchased subsequent to the
estimated value shall be the aggregate of the             design contest procedure, and for which a
estimated value of the supplies and services. The         contract shall be concluded with the winner
estimated value of installation and putting into          or, based on a recommendation from the
operation shall also be taken into account, where         jury, with one of the winners (prize
appropriate, in the estimated value of the                winners), unless the contracting authority
supplies.                                                 (the sponsor) excluded the conclusion of any
                                                          such contract in the invitation starting the
                    Article 38                            procedure.

1. In the case of service contracts which do not                          Article 39
specify a total price, the estimated contract value
shall be:                                             1. When calculating the estimated value of
                                                      public works contracts covering a period of
(a) in respect of fixed-term contracts with a         several years, the total remuneration of the work
    term of 4 years or less, the contract value for   shall be taken into account.
    its duration;
                                                      2. Where public works are subdivided into
(b) in respect of contracts of indefinite duration    several lots, or are executed under individual
    or with a term of more than 4 years, the          contracts, the estimated value of each lot shall be
    monthly instalment multiplied by 48.              taken into account for the purpose of calculating
                                                      the total value.




                                                                                                     21
3. The estimated value of the supplies and            3. Where a contract award procedure, as set
services needed to carry out the works and            forth in this Chapter, is to be conducted
provided by the contracting authority shall also      according to paragraph 2 due to the aggregate
be taken into account for the purpose of              value of several supply products each of which
calculating the estimated contract value.             has a value below the Community threshold,
                                                      their acquisition pursuant to more than one
4. The estimated value of supplies and services       contract award procedure under this Chapter
not needed to carry out the public works shall not    despite the calculation of their aggregate value
be taken into consideration when calculating the      shall not constitute an act of avoidance of the
estimated value thereof with the intention of         application of this Act.
avoiding the application of this Act to the given
public supply or public works contract.               4. Where no account was taken of the
                                                      provisions of paragraph 2 in calculating the
                  Article 39/A                        estimated value, the supply products still to be
                                                      procured, as set forth in this Chapter, in the fiscal
1. The estimated value of the framework               year or in the twelve months in question may,
agreement shall be the estimated highest              regardless of their individual value, only be
aggregated value of the contracts to be concluded     covered by a contract which is to be concluded
during the period in question on the basis of the     pursuant to a contract award procedure under this
agreement.                                            Chapter.

226. In the case of the application of the dynamic                          Title 2
purchasing system the estimated value of the
public procurement shall be the highest                General rules for contract award procedures
aggregated value of the contracts to be concluded
during the period in question on the basis of the            Types of contract award procedures
system.
                                                                          Article 41
                    Article 40
                                                      1. Contract award procedures may be open or
1. It shall be prohibited to apply any of the         restricted or negotiated or competitive dialogue
valuation methods described in Articles 35 to 39      procedures. Recourse to a negotiated procedure
with the intention of avoiding the application of     or to a competitive dialogue procedure may only
this Act, and to split up any procurement in          take place if this is permitted by this Chapter.
violation of paragraph 2 with the same intention.
                                                      2. In open or restricted procedures the
2. When calculating the estimated contract            contracting authority shall be bound by the
value, account shall be taken of all those supplies   conditions specified in the invitation and in the
or works or services which                            tender documentation, while the tenderer shall be
                                                      bound by his tender. In open or restricted
(a) have been delivered or executed or                procedures no negotiation may take place.
    performed, as appropriate, during the same
    fiscal year or during the same period of 12       3. Contracting authorities may apply               a
    months [Article 37 (1)] [with the exception       framework agreement procedure (Title 7/A).
    of cases covered by Article 39 (1)], and
                                                      4.27 Contracting authorities may create and
(b) could be supplied under contracts to be           operate a dynamic purchasing system that aims
    concluded with the same contracting               at selecting in advance candidates to participate
    authority, and                                    in a procedure to implement specific public
                                                      procurements. A separate act of legislation shall
(c) have the same purpose or similar purposes,        define the detailed rules concerning the dynamic
    or their uses are directly interconnected.        purchasing system.


26                                                    27
  This provision entered into force on 1 January        This paragraph entered into force on 1 January
2007.                                                 2007.


22
5. In the course of a contract award procedure       them in a single document or to cover each in an
there shall be no changeover from one type of        individual document.
procedure to another one.
                                                                         Article 43
6. In the event of an unsuccessful open or a
restricted or a negotiated procedure, or of a        1. Contracting authorities shall publish their
competitive dialogue, the contracting authority      indicative overall information by means of a
shall decide to launch a new procedure, in           notice. Such notices shall be drawn up in
conformity with the rules for the application of     accordance with a template provided in the
the various types of procedures, except when         relevant legislation, and they shall be sent by the
they no longer intend to carry out the public        deadline provided for in Article 42 (1)-(2) at the
procurement in question.                             latest. Contracting authorities may publish their
                                                     indicative consolidate notice on their Internet
7. Unless otherwise provided in this Chapter,        homepage. The notice may be published on the
the rules pertaining to open procedures shall        Internet homepage after it has been dispatched
apply as appropriate to restricted and negotiated    electronically to the Office for Official
procedures, and to the competitive dialogue.         Publications of the European Communities. Also
                                                     in this case the notice shall be prepared in
               Prior information                     accordance with the template provided in a
                                                     separate act of legislation.
                   Article 42
                                                     2. In the case of supply contracts the indicative
1. Contracting authorities, after the budgetary      consolidated information shall be prepared in a
year begins, may prepare an indicative               breakdown of product categories, and shall
consolidated information notice for the relevant     specify the relevant product category by
year, or for the subsequent 12 months at the         reference to CPV.
most, for
                                                     3. In the case of service contracts, indicative
(a) total procurement under supply contracts         overall information notices shall be prepared by
    (equaling    or  exceeding    Community          categories of services listed in Annex 3.
    thresholds and exclusive of exceptions) if
    the total estimated value of such                4. Publication of an indicative overall
    procurement equals or exceeds 750.000            information notice shall not entail any obligation
    euros;                                           to conduct a procedure for the award of a
                                                     contract included therein.
(b) total procurement under contracts for
    services listed in Annex III (equaling or        5 - 6.
    exceeding Community thresholds and
    exclusive of exceptions), if the total                    Sending and publication of notices
    estimated value of such procurement equals
    or exceeds 750.000 euros.                                            Article 44

2. Contracting authorities may prepare an            1. For the purposes of this Chapter, publication
indicative consolidated information notice           of a notice shall mean its publication in the
indicating the essential characteristics of and      Official Journal of the European Union and in
conditions for a planned public works contract, if   the Tenders Electronic Daily (hereinafter
the estimated value of this public works is equal    referred to as ‘TED data bank’), except where
to or exceeds the Community threshold                this Chapter provides otherwise. In the case of
concerning public works. This notice shall be        the publication of the notice on the Internet
prepared after the decision has been made to         homepage of the contracting authority [Article
implement the planned public works.                  43 (1)], the date when this notice is published on
                                                     the homepage shall govern the legal effects
3. Where there are various subjects of public        related to the publication of the notice.
procurements, indicative overall information
notices may be prepared either to cover all of       2. The contracting authorities shall send the
                                                     notices as rapidly as possible and by the most



                                                                                                    23
appropriate channels via the Public Procurement        Official Journal of the European Union and in
Council to the Office for Official Publications of     the TED databank in the official language chosen
the European Communities. In the case of an            by the contracting authority.
accelerated procedure (Article 136), the notice
shall be sent by telefax or electronically.            2. A summary of the important constituent
                                                       elements of the notices prepared according to the
3. The Office for Official Publications of the         provisions set out in paragraph 1 shall be
European Communities shall publish the notices         published in the official languages of the
no later than 12 days after their dispatch; in the     European Union noting that only the text drawn
case of an accelerated procedure or in the case of     up and sent in the official language chosen by the
dispatch of the notice by electronic means and in      contracting authority shall be considered
a manner specified in the relevant legislation,        authentic.
this period shall be reduced to five days.
                                                       3. The size of the notice dispatched in a non-
4. Before forwarding or dispatching the notice         electronic form shall not be larger than the size
sent by the contracting authority, (the Secretariat    specified according to paragraph 5 by a separate
of) the Public Procurement Council shall               act of legislation.
examine the notice to ensure that it complies
with the legislation applicable to public              4. The cost of publication of the notices in the
procurements. A fee, specified in a separate act       Official Journal of the European Union shall be
of legislation, shall be paid for examining the        borne by the European Union.
notice.
                                                       5. Detailed rules for the sending and
5. The notice is dispatched by the Public              publication of notices shall be laid down in
Procurement Council for publication. The Public        specific legislation.
Procurement Council must furnish proof of the
dispatch date of the notice.                                              Article 46

6.28 In the case of a notice dispatched through        Contracting authorities may also request the
non-electronic means, or electronically, but not       publication, within the meaning of Article 44 (1),
in the form specified by the separate act of           of such notices which concern public
legislation, the Public Procurement Council, at        procurements whose publication is not obligatory
the request of the contracting authority, shall        in accordance with this Chapter. Such
dispatch the notice to the Office for Official         publication, however, shall not be subject to the
Publications of the European Communities in the        procedure set forth in this Chapter.
form specified by the separate act of legislation.
For dispatching the notice electronically in such                         Article 47
a form a fee shall be collected, the amount of
which is specified in a separate act of legislation.   1. Notices covered by this Chapter [Article 44
                                                       (1)] shall be published as information by the
7. The Office for Official Publications of the         Public Procurement Council in the Public
European Communities shall dispatch a                  Procurement Bulletin according to a separate act
confirmation about the publication of the notice       of legislation, and in the benefit of this
sent, indicating the date of such publication. This    contracting authorities shall send to the Public
confirmation shall be considered as evidence           Procurement Council the notice they have
concerning publication.                                dispatched     for    publication.     Contracting
                                                       authorities may publish the notice by means of
                    Article 45                         any other channel, provided that such publication
                                                       takes place only after the dispatch of this notice
1. Indicative consolidated information notices,        to the Office for Official Publications of the
as well as notices starting the public procurement     European Communities. Notices published
procedure, and notices on the results of the           thereby shall not contain data other than that
procedures shall be published in full in the           published in the Official Journal of the European
                                                       Union (in the TED databank), as well as on the
28
  This paragraph entered into force on 1 January       Internet homepage of the contracting authority,
2007.                                                  and these shall mention the date of dispatch to



24
the Office for Official Publication, and also the     3. In the tender notice the contracting authority
date of publishing on the homepage.                   may allow tendering for a part of the public
                                                      procurement. In such cases the tender notice
2. Publication rules laid down in Part Three          shall stipulate those elements of the subject of
shall apply as appropriate to notices to be           the public procurement that may be tendered for
published in the Public Procurement Bulleting         in the form partial offers.
according to this Chapter.
                                                                          Article 51

                     Title 3                          1. The tender notice shall indicate if the
                                                      tenderer is permitted to submit variant
                Open procedures                       (alternative) offers. The application of Article 50
                                                      (2) in itself shall not be considered a permission
            Launch of the procedure                   to submit variant offers.

                    Article 48                        2. The contracting authority may permit the
                                                      submission of variant offers, where the contract
1. The open procedure shall be launched by a          is awarded by the best-value-for-money
tender notice which shall be published in a notice    procedure [Article 57 (2) (b)].
by the contracting authority.
                                                      3. When the contracting authority permits the
2. The tender notice may also be published if         submission of variant offers, it shall state in the
the contracting authority or the body specified in    tender notice or the tender specifications the
Article 22 (2) has submitted or will submit an        minimum       requirements       and      technical
application (tender) for subsidy. In the tender       specifications for public procurement to be
notice (under “Other information”) tenderers          observed by the variant offers and any specific
shall be advised of this circumstance as well as      requirements for their presentation.
the condition set forth in paragraph 3.
                                                                          Article 52
3. In the case of paragraph 2 rejection of the
application for subsidy shall be deemed as a          Tenders may be submitted by several tenderers
reason or circumstance stipulated in Article 82,      jointly. The contracting authority may not
Article 99 (3) and Article 303.                       require such joint tenderers to set up a company
                                                      or a specific legal entity as a condition of
                The tender notice                     submitting the tender; however, joint tenderers
                                                      selected as contractor may be required to do so
                    Article 49                        should that be justified for the performance of
                                                      the contract. Tenderers shall be advised of this
The tender notice shall be drawn up according to      fact in the tender notice.
the template provided for in the relevant
legislation in a manner that grants equal                                 Article 53
opportunities to tenderers to submit an
appropriate tender.                                   1. In the tender notice the contracting authority
                                                      shall stipulate the conditions for settling the
                    Article 50                        consideration and refer to the applicable legal
                                                      regulations. In that notice the contracting
1. The contracting authority shall state the          authority shall also describe its intentions to
subject and value of the contract in the tender       reach agreement on deferred payment of the
notice.                                               consideration or on payment in instalments. 29

2. The contracting authority may specify the          2. If the public procurement is financially
value or quantity of the contract as a threshold or   supported by the European Union, the
a ceiling and allow derivation therefrom, stating
also the percentage of permitted discrepancy.
                                                      29
                                                        This provision entered into force on 7 July
                                                      2007.


                                                                                                      25
contracting authority shall provide the details of     economic, as well as professional capabilities of
the given project (program) in the tender notice.      tenderer, and the evaluation criteria considered
                                                       as such by the contracting authority.
3. The tender notice shall state the date of
announcement of the results [Article 94 (1)] as        8. For the purpose of the application of
well as the date of signing the contract [Article      paragraph 6 a social requirement, in particular,
99 (2)].                                               shall be

4. The contracting authority may stipulate in          (a) involvement in the fulfillment of the
the tender notice that the tenderer should apply           relevant contract of a sheltered employer, of
the method of value analysis.                              an organization that has concluded a
                                                           sheltered entity contract, as well as an
5. In the invitation to tender contracting                 organization that possesses a social
authorities may set out the requirement that the           employment license;
contract awarded shall include a guarantee; in
this case in the invitation to tender contracting      (b) employment of persons looking for work,
authorities                                                and of unemployed persons;

(a) shall specify that this guarantee may be           (c) employment of persons in part-time jobs
    presented in the specified amount of money,            who are recipients of child care aid, of child
    according to the choice of the winning                 education support during the duration of
    contracting tenderer, in the form of a                 such payments or subsequent to the ending
    payment into the banking account of the                of such payments, and employment of
    contracting authority in question, of                  persons who are recipients of pregnancy and
    providing a banking guarantee, of a                    child birth aid, and child care benefits after
    promissory note for cash payment issued on             the end of the payment of such;
    the basis of an insurance contract, or
                                                       (d) a specification of the measures for ensuring
(b) shall specify one or several forms of                  the implementation of the principle of equal
    guarantees that are not included under point           treatment.
    (a), and shall provide that the winning
    contracting tenderer shall make a choice and                     Tender specifications
    provide the guarantee in any form specified,
    or set out under point (a).                                            Article 54

6. In the invitation to tender contracting             1. Partly in order to facilitate the preparation of
authorities may set out the requirement that the       suitable tenders, the contracting authority shall
fulfillment of the contract concluded with the         draw up tender specifications which, among
winning contracting tenderer shall be subject to       others, contain the detailed contracting terms and
specific conditions, pursuant to law, in particular    conditions or the draft contract.
to social, as well as environmental protection,
quality assurance30 requirements. Contracting          2. In the tender notice the contracting authority
authorities shall provide detailed information         shall specify the method, the final date and the
about these requirements in the tender                 place for collecting the tender specifications as
documentation.                                         well as the terms of payment of any sum to be
                                                       paid for such documents. The contracting
7. The application of paragraph 6 shall not            authority may stipulate in its tender notice that
result in either unjustified, nor positive or          participation in the procedure is subject to the
negative discrimination of tenderers, moreover,        purchase or receipt of the tender specifications.
in the context of the fulfillment of the contract no   In case several tenderers shall make a common
such issues shall be set forth that concern the        tender, then it will be sufficient if one of the
technical    specification     of      the    public   tenderers buys or receives the tender
procurement, the assessment of the financial and       documentation.

30
  This provision entered into force on 7 July          3. The contracting authority shall ensure that
2007.                                                  the tender specifications are available from the



26
publication of the tender notice until the expiry     contracting authority or the authority designated
of the time limit to submit tenders.                  thereby additional (interpretative) information
                                                      concerning the tender notice and the tender
4. Provided they have requested the sending of        specifications no later than ten days before the
the tender documentation, and the contracting         expiry of the time limit to submit tenders.
authority has not made the full documentation
directly accessible free-of-charge for tenderers,     2. The additional information shall be provided
the contracting authority or the entity they so       no later than six days before the expiry of the
instruct, shall satisfy the request not later than    time limit to submit tenders.
two working days after having received the
request, provided the counter value has been          3. The contracting authority may extend the
paid.                                                 expiry of the time limit to submit a tender if it
                                                      cannot provide in time the additional information
5. The sum payable for the tender                     pursuant to paragraph 2. All tenderers shall be
specifications shall be established based on the      informed without any delay, in writing and at the
costs incurred in connection with their               same time about the extension of the expiry of
production and provision to the tenderers due to      the time limit to submit the tender. In this case
the public procurement process.                       Article 75 (1) shall not be applicable. The
                                                      contracting authority may use the possibility of
6. The tender specifications shall be returned        extending the expiry of the time limit to submit a
and the sum paid refunded within ten days, if         tender only if they have stated in the invitation to
                                                      tender the purchasing or the receipt of the tender
(a) the contracting authority withdraws the           documentation is a precondition for participation
    tender notice;                                    in the procedure. Tenderers which have not yet
                                                      purchased nor have not yet received the tender
(b) the procedure is unsuccessful under Article       documentation, shall be informed in writing
    92 (d), (f) or (g);                               about this condition at the time when they
                                                      receive the documentation.
(c) the contracting authority fails to announce
    the result of the procedure by the time limit     4. The provision of additional information may
    indicated in the tender notice nor by the         not prejudice the equal treatment and equal
    extended deadline.                                opportunities of tenderers. The full contents of
                                                      the information shall be made accessible or sent
                    Article 55                        to the tenderers. Such information shall not result
                                                      in the modification of the tender notice and
In the case of works contracts and the                tender specifications.
procurement of services the contracting authority
may state in the invitation to tender that tenderer   5. Additional information may also be
shall obtain appropriate information on the           provided in the form of consultation. In that case,
obligations relating to taxes, to environmental       the time and place of the consultation shall be
protection, to providing unhindered access to         indicated in the tender notice. Minutes shall be
facilities, as well as to the employment              taken on the consultation to be forwarded within
protection provisions and to the working              five days thereof to the tenderers having attended
conditions which are in force at the site of          the consultation, and simultaneously made
implementation and which shall be applicable. In      accessible to the tenderers.
this case the contracting authority shall provide
the name and the address of the bodies                6. Paragraphs 1 to 5 shall be applicable also to
(authorities) from which a tenderer may obtain        additional information provided during on-the-
the appropriate information.                          site inspections and site visits.

             Additional information                                  Evaluation criteria

                    Article 56                                            Article 57

1. In order to submit an appropriate tender, the      1. The contracting authority shall specify the
tenderer may request in writing from the              evaluation criteria in the tender notice.



                                                                                                      27
                                                     (d) The constituent factors shall never allow the
2. The contract may be awarded based on                  same substantial element in a bid being
either of the following two criteria:                    taken into consideration more than once;

(a) the tender quoting the lowest price, or          (e) If within the scope of the constituent factors
                                                         sub-factors have been specified, the relevant
(b) the best-value-for-money tender.                     weight of these shall be specified
                                                         commensurate to their actual significance.
3. If the contracting authority wishes to select
the best-value-for-money tender, it shall specify:   5. The information listed in paragraph 3 shall
                                                     be indicated in the tender notice (the details
(a) the constituent factors for assessing the        referred to in points (c) and (d) under “Other
    economically most advantageous tender;           information”), however, the detailed description
                                                     of the method(s) specified in point (d) may also
(b) the rated multiplier of each constituent         be included in the tender specifications.
    factor to determine its weight, as consistent
    with the actual significance of such factor      6. The Public Procurement Council shall
    (hereinafter referred to as ‘weight’);           prepare recommendations regarding the methods
                                                     referred to in paragraph 3 (d) and the assessment
(c) the lowest and highest scores, to be the same    of the tenders.
    for all constituent factor, for the content
    elements of tenders when evaluating              Technical specifications for public procurement
    according to constituent factors;
                                                                         Article 58
(d) the method(s) that shall provide the scores in
    the range between the higher and upper           1. The contracting authority shall provide in
    limits of the scores (point c).                  the invitation to tender or in the tender
                                                     specifications the public procurement technical
4. The contracting authority shall specify the       specifications for the subject-matter of the public
constituent factors pursuant to paragraph 3 (a),     procurement.
according to the following requirements:
                                                     2. Public procurement technical specifications
(a) Within the scope of constituent factors the      shall be defined so as to take into account
    financial and economic standing, the             accessibility criteria for all users, and whenever
    technical capabilities and the professional      possible, equal treatment accessibility criteria for
    qualifications of the tenderer for performing    people with locomotion disabilities.
    the contract shall not be evaluated;
                                                     3. Without prejudice to mandatory technical
(b) The constituent factor for the amount of         rules, to the extent that they are compatible with
    price shall always be provided for among the     Community law, the technical specifications
    constituent factors;                             shall be drawn up as follows:

(c) The constituent factors shall always be          (a) with respect to the design, calculation, and
    based on quantifiable elements or elements           execution of the works and use of the
    comparable in some other manner and shall            product by reference to national standards
    be related to the subject of the public              transposing European standards, European
    procurement and the material terms of the            technical approvals, common technical
    relevant contract (in addition to the price,         specifications,    international    standards,
    e.g.: quality, technical value, aesthetic and        technical reference systems established by
    functional properties, environmental effects,        the European standardization bodies, or –
    operating costs, economy and cost-                   when these do not exist – to national
    efficiency, customer service and technical           standards, or national technical approvals, or
    assistance, supply of spare parts, securing          national technical specifications; or
    stocks, delivery date or period);
                                                     (b) in terms of performance or functional
                                                         requirements; or



28
                                                     7. The contracting authority shall not define
(c) according to the terms mentioned in point        the public procurement technical specification as
    (b), with reference to the specifications        to exclude from the procedure certain tenderers
    mentioned in point (a) as a means of             or products, or with the effect of favouring or
    presuming      conformity   with    such         disadvantaging in any other manner. If the
    requirements; or                                 precise and intelligible description of the subject-
                                                     matter of the public procurement justifies
(d) for certain characteristics referring to the     reference to a specific make or source, or type, or
    specifications mentioned in point (a), and for   a particular process, activity, person, or patent or
    other characteristics referring to the           trade mark, the specification shall state this was
    requirements mentioned in point (b).             justified only by the need to specify the subject
                                                     matter precisely, and such a reference shall be
4. In the case of paragraph 3 (a) the contracting    accompanied by the word “or equivalent”.
authority shall, besides referring to the name of
the standard, technical approval, technical                             Tender bond
specifications, technical reference system,
mention the term “or equivalent”.                                        Article 59

5. Where contracting authorities lay down            1. A contracting authority may render
environmental characteristics in terms of            participation in the procedure subject to the
performance or functional requirements        as     provision of a tender guarantee (hereinafter
referred to in paragraph 3 (b), they may use the     referred to as ‘tender bond’), to be provided by
detailed specifications or, if necessary, parts      tenderers simultaneously with submitting their
thereof, as defined by European national (or         tenders, or by the deadline specified by the
international) eco-labels, provided that:            contracting authority in the tender notice in the
                                                     amount defined therein. Tenderers shall produce
(a) those specifications are appropriate to define   proof of having the tender bond provided to the
    the characteristics required by the subject-     contracting authority.
    matter of the public procurement,
                                                     2. The tender bond may be provided by having
(b) the requirements for the label are drawn up      the prescribed sum deposited into the account of
    on the basis of scientific data,                 the contracting authority or by the provision of
                                                     financial guarantee or by furnishing a promissory
(c) the eco-label has been adopted using a           note issued pursuant to an insurance contract and
    procedure in which all interested parties        containing a joint and several guarantee, subject
    could participate, and                           to the choice of the tenderer. The place of
                                                     payment and the account number of the
(d) the specifications are accessible to all         contracting authority, together with the method
    interested parties.                              of evidencing such payment shall be defined in
                                                     the tender notice.
6. Contracting authorities may indicate that the
products and services bearing the eco-label are      3. The amount of the tender bond shall be
presumed to comply with the public procurement       established in a manner which ensures equal
technical specifications. In this case the           opportunity to all tenderers and set so as to cover
contracting authority shall accept any other         any potential damages sustained, as foreseeable,
appropriate means of proof, in particular a          by the contracting authority in the event of
technical documentation of the manufacturer, or      infringement of the parties’ contractual
a test report from a recognized body. Recognized     obligations as described in paragraph 4, or in the
bodies are test and calibration laboratories, and    event of the tenderer withdrawing his tender
certification and inspection bodies which comply     within the validity period (Articles 76–77) or if
with applicable European standards. Contracting      contracting fails due to reasons attributable to the
authorities shall accept certificates from           tenderer.
recognized bodies established in other Member
States.                                              4. If the tenderer withdraws its tender during
                                                     the validity period or the contract is not
                                                     concluded due to a reason arising within the



                                                                                                     29
tenderer’s sphere of interest, the tender bond         (c) who have been convicted of an offence
shall be forfeit and can be claimed by the                 concerning their business activities or
contracting authority.                                     professional conduct by a judgment which
                                                           has the force of res judicata, until the time
5.   The tender bond shall be refunded                     limit for the detriments regarding criminal
                                                           records lapses; or whose activity was
(a) to tenderers within ten days of the                    restricted by a judgment which has the force
    withdrawal of the tender notice, of having             of res judicata, under Article 5 (2) (b) and (f)
    the procedure declared unsuccessful or                 of Act CIV of 2001 on Punitive actions
    announcing the award of the contract;                  applicable against legal persons, during the
                                                           period of prohibition; or whose activities
(b) to the successful tenderer, or in the case set         have been restricted for a similar reason and
    forth in Article 91 (2) to the tenderer ranked         in a similar manner by another court in a
    second, within ten days of signing the                 judgement which has obtained the force of
    contract, unless the tender notice stipulated          res judicata;
    the tender bond to be retained and
    transferred as additional security for the         (d) who have been prohibited from participating
    ensuing contract.                                      in contract award procedures by a judgment
                                                           which has the force of res judicata, during
6. If participation in the procedure was made              the period of the prohibition;
conditional upon the provision of a tender bond,
the contracting authority shall, within ten days,      (e) have not fulfilled their tax, customs duty or
refund double the amount in case of a bond                 social security contribution payment
furnished in cash, or an amount equivalent to the          obligations for over a year, in accordance
bond in all other cases                                    with the legal provisions of the country in
                                                           which they are established or with those of
(a) to tenderers in the event of failing to                the country of the contracting authority,
    announce the award of the contract by the              unless they were granted a permission for
    date indicated therefore in the tender notice,         deferred payment of the debt;
    or by the modified date;
                                                       (f) supplied false data in an earlier contract
(b) to the successful tenderer, or in the case set         award procedure (concluded within the
    forth in Article 91 (2), to the tenderer ranked        previous three years) and was therefore
    second, in the event of failing to conclude            excluded from the procedure, or the supply
    the contract.                                          of false data was ascertained by a judgment
                                                           which has the force of res judicata.
              Grounds for exclusion
                                                       (g) who in an administrative or a Court
                    Article 60                             judgment which has the force of res judicata,
                                                           delivered not more than five years ago, has
1. The following tenderers and subcontractors              been found to have violated the law and has
shall be excluded from participation in the                been subsequently fined or ordered to pay a
procedure:                                                 fine by the Labor Tribunal for having
                                                           violated obligations in connection with the
(a) who are being wound up or against whom                 establishment or with the registration of a
    bankruptcy or liquidation proceedings are in           labor contract, or in connection with the
    progress, or against whom a similar process            employment of foreigners31;
    is in progress, or who is in a similar situation
    pursuant to personal right, or who are any
    analogous situation arising from a similar         31
                                                          In accordance with Article 132 (4) of Act of
    procedure under their personal right;              CLXXII of 2005, the expression ”delivered not
                                                       more than five years ago” describing judgements
(b) who have suspended business activities or          first shall be used on judgements which has been
    whose business activities have been                found to have violated the law and has been
    suspended;                                         subsequently fined or ordered to pay a fine by
                                                       the Labour Tribunal after 4 August 2005.


30
(h) who commits a crime of participation in a
    criminal organization pursuant to the             5. The contracting authority in the invitation to
    Criminal Code, including committing a             tender shall refer to the reasons for exclusion
    crime within a criminal organization, of          pursuant to paragraph 1, as well as to the
    bribery, of bribery in international relations,   provisions laid down in paragraph 4.
    of infringing the financial interests of the
    European Communities provided he is the                              Article 61
    subject of a judgment of the Court which has
    the force of res judicata, until the expiry of    1. The contracting authority may stipulate in
    the time limit for the consequences of such       the tender notice that the following tenderers,
    judgment;                                         subcontractors they intend to employ for more
                                                      than 10% of the contract value and
(i)32 who has acted contrary to and has been          subcontractors as defined in points (d)-(e) are
     found to have violated the law on gender         excluded from the procedure:
     equality and on equal treatment by an
     administrative or Court judgment which has       (a) who have been convicted of an offence
     the force of res judicata, delivered not more        concerning their business activities or
     than two years ago and who has been                  professional conduct by a judgment which
     subsequently fined.                                  has the force of res judicata delivered within
                                                          the previous five years;
2.33 With regard to tenderers and subcontracts
with a seat in Hungary the tax payment liability      (b) who have committed an offence and have
referred to in paragraph 1 (e) shall mean the tax         been issued a pecuniary penalty under
payment liability indicated in the records of the         Article 11 of Act LVII of 1996 on the
national income tax and national customs                  prohibition of unfair market practices and
authority.                                                restriction of competition, as well as
                                                          according to Article 81 of the Treaty
3. Concerning the criminal acts referred to in            establishing the European Community, in
paragraph 1 (h), in the case of tenderers                 the final and enforceable decision of the
established in other Member State of the                  Office for Economic Competition –
European Union, participation in a criminal               delivered within the previous five years —,
organization, as defined in Article 2 (1) of              or in the event of the court review of the
Council Joint Action 733/98/HA, corruption, as            decision of the Office for Economic
defined in Article 3 of the Council Act of 26             Competition, by a pecuniary penalty and a
May 1997, and Article 3 (1) of Council Joint              judgment which has the force of res judicata;
Action 742/98/HA, respectively, fraud within the          or if the perpetration of such offence by the
meaning of Article 1 of the Convention relating           tenderer has been ascertained by a final
to the protection of the financial interests of the       decision and a pecuniary penalty, or by a
European Communities, money laundering, as                judgment which has the force of res judicata
defined in Article 1 of Council Directive                 and a pecuniary penalty of another economic
308/91/EEC on prevention of the use of the                competition office or court within the
financial system for the purpose of money                 previous five years;
laundering shall be effective, respectively.
                                                      (c) who have violated their contractual
4. The reasons listed in paragraph 1 for                  obligations undertaken in a contract award
exclusion also shall be applied appropriately to          procedure (concluded within the previous
organizations specified in Article 66 (2), and in         five years) as ascertained under a final
Article 67 (4).                                           administrative or court judgement which has
                                                          the force of res judicata;
32
   This provision entered into force on 1 January
2007. In accordance with Article 132 (5) of Act       (d) who are not registered in their country of
of CLXXII of 2005 it shall be applied to                  establishment;
infringements perpetrated and fined after 1
January.                                              (e) who do not hold the permit or licence or are
33
   This provision entered into force on 1 January         not members in a professional organisation
2007.                                                     or chamber prescribed in their country of



                                                                                                     31
     establishment for the provision of the
     service.                                        1. Tenderers, and in the case outlined in Article
                                                     71 (1) (b) and (5), their subcontractors intended
2. If the contracting authority is a local           to be employed for more than 10% of the public
government, a local government of minorities, a      procurement value, shall certify and/or make a
local minority self-government, a budgetary          written statement in the tender in compliance
authority of a local government or of a local        with paragraphs (2)–(3), that they are not subject
minority self-government, it may also stipulate in   to Article 60 (1) or – if prescribed by the
the tender notice that those tenderers and           contracting authority – to Article 61 (1) and (2).
subcontractors who have failed to fulfil their
obligations relating to the payment of tax,          2. The contracting authority shall accept the
customs duty or social security contributions for    following certificates and written declarations:
over a year, in accordance with the records of the
tax authority competent at the seat of the           (a)34 for Article 60 (1) (a)–(d), (f) and(h) and
contracting authority, unless they were granted a         Article 61 (1) (a)–(c), the production of an
permission for deferred payment of the debt.              extract from the ‘judicial or police record’
                                                          (certificate of clean criminal record) or,
3. Tenderers or subcontractors authorised to              failing this, of an equivalent document
provide the relevant service in the country of            issued      by   competent     judicial   or
their establishment shall not be excluded from            administrative authorities;
the procedure on the grounds that they do not
fulfil the legal and organisational criteria (e.g.   (b) for Article 60 (1) (e), a certificate issued by
being a legal entity) stipulated by Hungarian            the competent authorities in the country
legislation for the provision of the relevant            concerned;
service, or that according to Hungarian
legislation only natural persons are entitled to     (c) if the competent court or authority does not
provide the relevant service.                            issue extracts and certificates according to
                                                         point (a) or (b), or these do not cover all the
                   Article 62                            cases referred to in point (a), then the
                                                         declaration of the tenderer (subcontractor)
1. The contracting authority shall exclude from          made under oath or if such a declaration is
the procedure those tenderers who themselves, or         not known in the country concerned, a
whose subcontractor intended to be employed by           declaration made by the tenderer
the tenderer for more than 10% of the contract           (subcontractor) before the competent court,
value according to Article 71 (1) (b) and (5)            authority,     chamber      of    professional
                                                         association, attested by the notary public;
(a) committed, as defined by legislation, a
    breach of professional duty or an act            (d) for Article 61 (1) (d), a certificate (extract),
    violating professional ethics within the last        or another certificate or declaration pursuant
    three years or a material breach of a                to the registers listed in Annex IX B for
    contractual obligation undertaken pursuant           public supplies, in Annex IX A for public
    to an earlier public procurement award               works, in Annex IX C for public services in
    procedure concluded within the last three            Directive 18/2004/EC on the coordination of
    years, and the contracting authority has             procedures for the award of public works
    proof thereof;                                       contracts, public supply contracts, and
                                                         public service contracts;
(b) have provided false data or made a
    misrepresentation in the course of supplying     (e) for Article 61 (1) (e), the certified copy of
    the information prescribed in the procedure          the permit or licence, and the certificate of
    (in particular Article 70 (2) and Article 71).       membership in a professional association or
                                                         chamber;
2. The contracting authority shall refer in the
tender notice to the grounds for exclusion listed
in paragraph 1 above.
                                                     34
                                                       This clause entered into force on 24 August
                   Article 63                        2006.


32
(f)35 for Article 60 (1) (i) the declaration of the    6_The authority certificate shall state it was
      tenderer (subcontractor);                        issued “for use in a public procurement
                                                       procedure” without indicating either the
(g) for Article 61 (2) the certificate of the          contracting authority or the subject of the
    authority;                                         procedure.

(h) the certificate based on the official list of      7. The organization pursuant to Article 66 (2)
    recognised tenderers, if the register verifies     and Article 67 (4) shall certify in the offer by a
    – also considering the provisions of Article       declaration attested by a notary public that they
    14 – that the tenderer (subcontractor) is not      are not under the effect of Article 60 (1).
    subject to any of the cases described in
    Articles 60–61.                                    8. On request, within two business days of
                                                       receipt, the contracting authority shall inform the
3. The tenderer and its subcontractor intended         contracting authority of another contract award
to be employed for more than 10% of the value          procedure of the circumstance described in
of the public procurement shall attach, in             Article 61 (1) (c).
compliance with paragraph 1 the certificate of
the authorities keeping records of public debts                            Article 64
specified in Article 60 (1) (e) and – if prescribed
by the contracting authority – Article 61 (2)          1. The Public Procurement Council shall issue
issued within one year prior to the date of            an information notice on the certificates,
announcing the results of the procedure, stating       statements, records and data referred to in Article
that at the time of issuing the certificate, the       63 (2)–(3).
tenderer and its subcontractor has no public debt
on the records of the authority, or stating the past   2. The Public Procurement Council shall notify
due date of the debt and whether deferred              the other Member States of the European Union
payment was granted.                                   and the European Commission on the competent
                                                       domestic authorities, certificates, statements,
4. If a new public due is stipulated by law            registers and data referred to in Article 63 (2).
under the scope of Article 60 (1) (e) or Article 61
(2) a certificate thereon shall be attached only in          Qualification of the tenderer and its
the case of contract award procedures whose                             subcontractor
results are scheduled to be announced later than
one year after the legal regulation on said public                         Article 65
debt enters into force.
                                                       1. The contracting authority shall prescribe in
                                                       the tender notice the criteria of both economic
5. 36 The existence of the condition in point (g)
                                                       and financial standing, technical capacity and
of Article 60 (1), in cases pertaining to the scope
                                                       professional qualifications of the tenderer, and
of Act LXXV of 1996 on labour health and
                                                       the certification thereof. The criteria and
safety control, shall be controlled by the
                                                       certification of suitability may only be prescribed
contracting authority according to the data
                                                       by the contracting authority in compliance with
published by the labour safety authority. In cases
                                                       Articles 66–69; this provision shall also apply to
under the scope of Act XLVIII of 1993 on
                                                       subcontractors intended to be employed for more
mining activity the authority certificate shall be
                                                       than 10% of the public procurement value
issued by the mining supervision37. The authority
                                                       (Article 71 (4)).
certificate shall be valid for three months
counted from the date of its issue.
                                                       2. The contracting authority may prescribe in
                                                       its tender notice that tenderers who are not
                                                       natural persons must specify in their tenders the
35
   This provision entered into force on 1 January      names and qualifications of the natural persons
2007.                                                  to be personally involved in the delivery of the
36
   This clause entered into force on 24 August         service.
2006.
37
   This provision entered into force on 1 January
2007.                                                                      Article 66



                                                                                                       33
                                                       of the tenderer and its subcontractor intended to
1. In the case of public supply contracts, public      be employed for more than 10% of the contract
works contracts and public service contracts,          value for the purpose of performing the contract:
evidence concerning the suitability of the
financial and economic standing of the tenderer        (a) a list of major deliveries during, at least, the
and its subcontractor intended to be employed              last three years (indicating at least the dates
for more than 10% of the contract value for the            of the delivery, the other party to the
performance of the contract may be furnished by            contract concluded, the subject-matter of the
the following references:                                  delivery, as well as the sum of the
                                                           consideration or another data referring to the
(a) a statement – to this effect - from the                quantity of the previous delivery);
    financial institution, or a certificate
    regarding the existence of appropriate surety      (b) a description of the supplier’s technical
    (liability insurance);                                 facilities, its quality assurance measures and
                                                           its study and research facilities;
(b) the submission of the tenderer’s report
    (where it’s the publication of such a report is    (c) indication of the professionals (bodies) and
    required under the law of the country in               managers envisaged to be involved in the
    which the tenderer is established) prepared            performance,      indicating    also    their
    in compliance with the accounting                      qualifications, especially those responsible
    regulations;                                           for quality control;

(c) a statement of total turnover and of its           (d) description, samples and/or photographs of
    turnover in respect of the subject matter of           the products to be supplied, the authenticity
    the public procurement for not more than the           of which must be certified if the contracting
    previous three years, depending on when the            authority so requests;
    tenderer was established, when they started
    operating if the turnover figures are              (e) certificates drawn up by recognized
    available;                                             institutes (accredited in any national system)
                                                           or agencies attesting conformity to certain
(d) other statement or document containing the             specifications or standards of products
    information prescribed or accepted by the              clearly identified by references to
    contracting authority and suitable for the             specifications or standards;
    assessment of the economic and financial
    standing and of technical capacity of the          (f) where the products to be supplied are
    tenderer.                                              complex or are required for a special
                                                           purpose, a check carried out by the
2. Tenderer may rely on resources of other                 contracting authorities or by another body,
entities (organizations) in order to be in                 on the production capacities of the supplier
compliance with suitability requirements                   and if necessary on his study and research
specified in paragraph 1 (a) to (d). In this case          facilities and quality control measures.
tenderer shall also certify, the availability of the
resources needed to implement the contract             2. In the case of public works contracts, the
during the period of such implementation.              following evidence may be furnished regarding
Certification shall take effect by the presentation    the suitability of the technical capacity and
of the declaration of the organization in question     professional qualification of the tenderer and its
concerning their undertaking to assume the             subcontractor intended to be employed for more
relevant responsibility.                               than 10% of the contract value for the purpose of
                                                       performing the contract:
                    Article 67
                                                       (a) a description of major works carried out
1. In the case of public supply contracts –                over the past five years;
considering the nature, volume and purpose
thereof – the following evidence may be                (b) a statement of the tools, plant and technical
furnished regarding the suitability of the                 equipment available to the contractor for
technical capacity and professional qualification          carrying out the work;



34
(c) the contractor’s education and qualifications      (d) an indication of the experts (bodies) and
    and/or those of the firm’s executive officers          managers involved in the supply of the
    and, in particular, those of the person or             service, indicating their qualifications,
    persons responsible for the delivery of the            especially those responsible for quality
    works;                                                 control;

(d) a statement of the firm’s average annual           (e) a statement of the tool, plant or technical
    manpower statistics and the number of                  equipment available to the service provider
    executive officers for the last three years;           for carrying out the services;

(e) a statement of the experts (bodies) and            (f) a description of the service provider's
    managers, indicating their qualifications,             measures for ensuring quality and his study
    which the tenderer intends to involve in the           and research facilities;
    performance of the contract, especially with
    the introduction of those wo shall be              (g) where the service is complex or required for
    responsible for quality controll38;                    a special purpose, a check carried out by the
                                                           contracting authorities or by another body,
(f) providing a description, when appropriate,             on the production capacities of the supplier
    of the environmental measures that tenderer            and if necessary on his study and research
    shall be able to provide in the course of              facilities and quality control measures;
    fulfillment.
                                                       (h) an indication of the proportion of the
3. In the case of public service contracts –               contract which the service provider may
considering the nature, volume and purpose                 intend to sub-contract;
thereof, and further, considering that capability
may primarily be assessed based on professional        (i) providing a description, when appropriate,
skills, efficiency, experience and reliability – the       of the environmental measures that tenderer
following evidence may be furnished regarding              shall be able to provide in the course of
the suitability of the technical capacity and              fulfillment.
professional qualification of the tenderer and its
subcontractor intended to be employed for more         4. Tenderer may rely on resources of other
than 10% of the contract value for the purpose of      entities (organizations) in order to be in
performing the contract                                compliance with suitability requirements
                                                       specified in paragraphs 1 to 3. In this case
(a) a list of not more than three of the major         tenderer shall also39 certify, the availability of
    services provided during the last three years      the resources needed to implement the contract
    (indicating at least the dates of the delivery,    during the period of such implementation.
    the other party to the contract concluded, the     Certification shall take effect by the presentation
    subject matter of the delivery, as well as the     of the declaration of the organization in question
    sum of the consideration or another data           concerning their undertaking to assume the
    referring to the quantity of the previous          relevant responsibility.
    delivery);
                                                                           Article 68
(b) the tenderer’s education and qualifications
    and/or those of the firm’s executive officers      1. In respect of Article 67 (1) (a) and (3) (a),
    and, in particular, those of the person or         the following evidence shall be furnished:
    persons responsible for providing the
    services;                                          (a) if the other contracting party is a public
                                                           authority specified in Article 22 (1) (a) to
(c) a statement of the service provider's average          (e), a certificate issued or signed by the
    annual manpower statistics and the number              authority;
    of executive officers for the last three years;
                                                       39
                                                         This provision entered into force on 7 July
38
  This provision entered into force on 7 July          2007.
2007.


                                                                                                      35
                                                       2. The tender notice shall stipulate the criteria
(b) if the other contracting party is an entity        set out in Articles 66 and 67 whose fulfilment,
    other than that specified in point (a), a          non-fulfilment or specific degree of deficiency
    certificate issued by it or a declaration by the   will cause the contracting authority to qualify the
    tenderer.                                          tenderer or the subcontractor intended to be
                                                       employed for more than 10% of the contract
2. In respect of Article 67 (2) (a), a certificate     value as unsuitable for the performance of the
issued by the other contracting party shall be         contract.
furnished. The certificate shall contain at least
the amount, the time and place of delivery and a       3. The contracting authority shall confine the
statement that performance has complied with           extent of the information and facts referred to in
the regulations and the contract.                      Articles 66 and 67 to the subject of the contract,
                                                       also taking into consideration the legitimate
3. Tenderer shall be responsible for the               interests of the tenderers (subcontractors) as
correctness of the facts and data incorporated in      regards the protection of their business secrets;
the certificate or declaration according to            furthermore, in respect of paragraph 2, only
paragraphs (1) and (2).                                requirements – also depending on the estimated
                                                       contract value – actually necessary for the
4. Where contracting authorities require the           performance of the contract may be prescribed.
submission of certificates issued by independent
bodies for attesting the conformity of the             4. The contracting authority may specify
tenderer (subcontractor) with certain quality          different     methods      for    tenderers    and
assurance standards, they shall refer to quality       subcontractors intended to be employed for more
assurance systems based on the relevant                than 10% of the contract value to verify their
European standards series certified by bodies          capability under Articles 66 and 67. If an
conforming to the relevant European standards          identical verification method is specified, the
series. Contracting authorities shall accept           tenderer and subcontractor intended to be
equivalent certificates from bodies registered in      employed for more than 10% of the contract
other Member States and shall also accept other        value shall meet the stipulated capability terms
evidence of equivalent quality assurance               pursuant to Article 66 (1) (a) and (b)
measures.                                              independently, regarding other stipulated
                                                       capability terms jointly, in order to be qualified
5. If the contracting authority prescribes that        for fulfilling the contract. Besides the capability
the tenderer (subcontractor) must furnish, in          terms provided in Article 66 (1) (a) and (b), the
respect of Article 67 (1) (b)-(c) and (f), or of       contracting authority may specify further
Article 67 (3) (b), (d)-(g) and (i), a certificate     capability terms that shall be met independently.
issued by an independent organization attesting
their compliance with certain environmental            5. In the event more than one tenderer present
management systems, then it shall refer to the         a joint tender, the tenderers, except the capability
eco-management and audit scheme (EMAS)                 terms pursuant to Article 66 (1) (a) and (b), may
attested by the organization according to the          jointly comply with the capability requirements,
relevant Regulation of the European Union, or to       moreover Article 66 (2), and Article 67 (4) also
the relevant European or international eco-            may be applied.
management standards. The contracting authority
shall accept any equivalent certification issued                           The tender
by an organization registered in another Member
State of the European Union, as well as other                              Article 70
evidence of equivalent eco-management systems.
                                                       1. Tenderers shall prepare and submit their
                    Article 69                         tender in accordance with the requirements
                                                       regarding the content and the form as defined in
1. The contracting authority may prescribe one         the tender notice and the tender specifications.
or more of the methods of certification specified      The tender shall contain, in particular, the
in Articles 66 and 67.                                 express declaration of the tenderer with regard to
                                                       the conditions of the tender notice, the
                                                       performance of the contract and the amount of



36
the consideration requested, furthermore that the     10% of the contract, the grounds for exclusion
tenderer, in case of winning the contract, in order   set forth in Article 63 (1)–(7)42 shall apply if the
to perform the contract concluded pursuant to the     tenderer must name such subcontractors under
contract award procedure, shall apply the             paragraph 1 (b). In all other cases, and in respect
provisions set out in Article 305 (1) to (3) and in   of subcontractors intended to be employed by the
Article 306/A (1) and (2), and consider them          tenderer for the performance of less than 10% of
mandatory for itself under its further contracts      the contract, the tenderer shall formally declare
based on the contract concluded pursuant to the       in his tender that he will not employ for the
contract award procedure40.                           performance of the contract any subcontractors
                                                      subject to the grounds for exclusion.
2. In respect of the grounds for exclusion,
tenderers shall act in compliance with Article 63     4. If prescribed by the contracting authority in
(1)–(7)41. Furthermore, tenderers shall provide       the tender notice, proof shall be furnished on the
proof of the adequacy of their financial and          financial and economic standing, technical
economic standing, technical capability and           capability and professional qualification of those
professional qualification required for the           subcontractors which are proposed to be
performance of the contract and furnish the           contracted for more than ten per cent of the
certificates thereon in the tender.                   contract value and the relevant certificates
                                                      furnished in the tender.
3. A tenderer shall not submit another tender
jointly with another tenderer for the same            5. If the subject of the public procurement is a
contract award procedure, and neither shall he        public works or public works concession and the
participate in the same procedure as                  contracting authority is an organization
subcontractor intended to be employed for more        according to Article 22 (1) (a) or (b), it shall
than 10% of the contract value by another             prescribe to the tenderer in the tender notice to
tenderer.                                             indicate in his offer the subcontractors envisaged
                                                      to be engaged in excess of ten percent of the
                    Article 71                        value of the public procurement.

1. If prescribed by the contracting authority in                          Article 72
the tender notice, the tender shall indicate
                                                      In the case of works contracts and the
(a) the proportion of the contract which the          procurement of services, where a contracting
    tenderer may intend to sub-contract, without      authority has prescribed so, according to Article
    specifying the body or person to be               55, that tenderer shall have to indicate in the
    involved, or                                      tender that they have taken into account, when
                                                      drawing up their tender, of the obligations
(b) the subcontractors intended to be employed        relating to employment protection provisions and
    by the tenderer for the performance of more       the working conditions, as well as the provisions
    than 10% of the contract value.                   for unhindered physical access which are in force
                                                      in the place where the contract shall be
2. The indication and employment of the               implemented. This shall be without prejudice to
subcontractors under paragraph 1 shall not affect     the application of the provisions of Article 86
the tenderer’s liability regarding performance.       concerning the examination of tenders containing
                                                      abnormally low consideration.
3. The tenderer shall not involve in the
performance of the contract a subcontractor that                          Article 73
is subject to the grounds for exclusion according
to Article 60 or Article 61. In respect of            1. Exclusively and expressly, in the relevant
subcontractors intended to be employed by the         Annex to their tender, tenderers may prohibit the
subcontractor for the performance of more than        public release of business secrets disclosed in
                                                      their tender. The provision excluding the
40
   This provision entered into force on 7 July        assignment of the contract concluded pursuant to
2007.
41                                                    42
   This provision entered into force on 11               This provision entered into force on 11
January 2007.                                         January 2007.


                                                                                                      37
a contract award procedure shall not be regarded      well as the shortened time limit (forty-five days
as a business secret.43                               and twenty-nine days, respectively) according to
                                                      this paragraph 3 may be shortened by not more
2. However, the tenderers may not prohibit the        than five days, provided the contracting
public release of their name, address (seat,          authority, fully and without any charge, make the
residence) or any fact, information, solution or      documentation accessible for the tenderers from
data (hereinafter jointly referred to as ‘data’)      the day the notice is published about the
eligible for scores under the evaluation criteria.    invitation to tender, and discloses the
Furthermore, the disclosure of data of public         accessibility data in this notice.
interest and data publicised in the public interest
that are subject to data supply and information       5. Where the tender documentation is too
obligation under the relevant law may not be          bulky or where tenders can only be drawn up
prohibited by invoking business secrecy.              after a visit on-site, or after an on-the-spot
                                                      inspection of a site, the contracting authority
 Time limit to submit tenders and the validity of     shall take this into consideration in defining a
                     tenders                          longer time limit for submitting tenders
                                                      compared to the provisions in paragraphs 1 to 4.
                    Article 74
                                                      6. The time limit to submit tenders shall always
1. The tendering deadline (time limit to submit       be set leaving sufficient time for the preparation
tenders) shall be set by the contracting              of appropriate tenders.
authorities at not less than 52 days from the date
of dispatch of the notice.                                               Article 75

2. If the contracting authority has dispatched        1. In justified cases, the contracting authority
an indicative consolidated information notice at      may extend the time limit to submit tenders
lease fifty-two days before, but no more than one     indicated in the initial tender notice on one
year prior to the dispatch of the notice including    occasion, provided that the extension of the time
the tender notice, which also contained the data      limit, together with the reason therefore, is
available at the time of the dispatch of the tender   published in a notice prior to the expiry of the
notice according to the template invitation to        original deadline.
tender notice, the time limit to submit tenders
provided in paragraph 1 may be shorter. In this       2. The time limit specified to submit tenders
case the time limit to submit tenders shall not be    may not be reduced.
shorter than thirty-six cays counted from the day
of the dispatch of the notice containing the                             Article 76
tender notice, except in the case of urgency,
when the time limit may be shortened to twenty-       1. Up until the expiry of the time limit to
two days, provided the notice has been                submit tenders, the contracting authority shall
dispatched using electronic means.                    have the right to modify the conditions specified
                                                      in the tender notice or the tender specifications.
3. The time limit for submitting a tender,            Prior to the expiry of this deadline, a new notice
according to paragraph 1 not less than fifty-two      shall be dispatched to fix a new time limit to
days, and according to paragraph 2 thirty-six         submit tenders. Even in such cases, the deadline
days may be shortened by not more than seven          cannot be shorter than stipulated under Article 74
days, providing the notice containing the             (1)–(4).
invitation to tender has been dispatched by the
contracting authority using electronic means          2. The contracting authority shall have the
according to the provisions of a separate act of      right to revoke the tender notice up until the
legislation.                                          expiry of the time limit to submit tenders,
                                                      dispatch a notice for publication prior to the
4. The time limit for submitting a tender not         expiry of the final date, and simultaneously
less than fifty-two days, or thirty-six days, as      inform the tenderers, to this effect.

43
  This provision entered into force on 7 July                            Article 77
2007.


38
1. Tenderers may modify their tenders up to           the expiry of the time limit fixed for the receipt if
the expiry of the time limit to submit tenders.       tenders have been opened.

2. After the expiry of the time limit to submit       2. The tender opening procedure may be
tenders, the submitted tenders may not be             attended by the contracting authority, the
modified even with the consent of the                 tenderers, and persons invited by them and – in
contracting authority.                                case of contracting authorities receiving subsidy
                                                      for the public procurement – the representatives
                    Article 78                        of organisations and persons specified in the
                                                      relevant legislation.
1. The binding period shall commence upon
the expiry of the time limit to submit tenders.       3. Upon opening the tenders, the names and
                                                      addresses (seat, residence) of the tenderers, as
2. The tenderer shall be bound by its tender at       well as the main quantifiable particulars to be
least up to the date for signing the contract         assessed according to the evaluation criteria
stipulated in the tender notice, unless the           (sub-criteria), shall be announced.
contracting authority has declared that it does not
intend to award the contract to any of the            4. The contracting authority shall draw up
tenderers.                                            minutes of the opening and the announcing of
                                                      the tenders, and shall distribute such minutes to
       Submission and opening of tenders              all tenderers within two business days from the
                                                      day of opening.
                    Article 79
                                                                   Evaluation of the tenders
1. Tenders shall be submitted in writing, in a
sealed envelope, by hand delivery or mail, to the                         Article 81
address indicated in the tender notice, by the
expiry of the time limit to submit tenders.           1. In the course of evaluating the tenders, the
                                                      contracting authority shall check the tenders for
2. The contracting authority may permit the           compliance with the conditions set in the tender
submission of the tenders by a method                 notice, the tender specifications and by law.
alternative to that specified in paragraph 1,
provided that it can guarantee that the tenders       2. The suitability or unsuitability of the
will not be opened before the expiry of the time      tenderer and, if stipulated by the contracting
limit to submit tenders and will not be disclosed     authority, of the subcontractor intended to be
to unauthorised users within the sphere of            employed for the performance of more than 10%
interest of the contracting authority.                of the contract value, to perform the contract
                                                      shall be assessed against the criteria set out in the
3. The contracting authority shall provide for        tender notice. The assessment may involve the
the alternative method referred to in paragraph 2     verification of the authenticity of the
in the tender notice, furthermore, it may require     certifications and certified copies.
tenderers to confirm – by the expiry of the time
limit fixed by the contracting authority – their      3. The contracting authority shall determine
tenders in writing. The contracting authority         which tenders are invalid or whether there are
shall provide information about the technical         any tenderers to be disqualified from the
conditions of the possibility referred to in          procedure.
paragraph 2 in the tender notice or in the tender
specifications.                                       4. Admissible tenders shall be assessed based
                                                      on the evaluation criteria set forth in the tender
                    Article 80                        notice (Article 57) and Articles 89 and 90.

1. The documents containing the tenders shall         5. The contracting authority shall have the
be opened at the time of the expiry of the time       right to use the tenders solely for the purpose of
limit fixed to submit tenders. The tender opening     their evaluation.
procedure shall last until all tenders submitted by
                                                                          Article 82



                                                                                                       39
                                                      missing information when they have observed an
The contracting authority shall evaluate the          item missing that has not been included in earlier
tenders, except if – due to unforeseeable and         requests for missing information, and tenderer
unavoidable reasons beyond its control –              has not supplied this information pursuant to
material circumstances arise after the start of the   paragraph (4).
award procedure, which make it incapable to
conclude the contract or to deliver under the         6. Where the contracting authority has
contract once concluded. In such cases the            provided several occasions for supplying missing
contracting authority shall declare the procedure     information, the information earlier indicated as
unsuccessful.                                         missing cannot be supplemented in a subsequent
                                                      supply of missing information.
                    Article 83
                                                      7. Supplying missing information shall not
1. The contracting authority shall state in the       result in the modification of the substantive
invitation to tender if they will provide the         elements of the tender that shall be the subject of
possibility in the public procurement procedure       assessment according to Article 81 (4), in
to supply missing information, and the scope for      addition, in the course of the supply of missing
providing such information. In procedures             information the tenderer shall not supplement the
related to public procurement supported by            tender by naming and submitting the relevant
sources from the European Union the contracting       documents of a new joint tenderer or of a
authority shall provide at least on one occasion      subcontractor, or of an organization according to
the possibility for providing missing information.    Article 66 (2), or of Article 67 (4), furthermore, a
                                                      restricted supply of missing information may
2. Where the contracting authority has                only cover missing items related to tender
provided comprehensively the possibility of           constituent elements set out by the contracting
supplying missing information, and this shall be      authority in the invitation to tender.
found necessary after the examination of tenders,
they may offer all tenderers the opportunity,         8. When appropriate, the contracting authority
under identical conditions, to subsequently attach    shall ascertain whether the contents of the tender
certifications and declarations related to grounds    copies submitted after supplying missing
for exclusion and capabilities, as well as other      information but not affected by the additional
documents stipulated in the invitation to tender      information correspond to the content of the
or in the tender specifications, to supply            original tender. In case of differences, or if the
additional information or to rectify formal           tenderer has failed to supply any or all of the
deficiencies related to the tender. Where the         missing items, only the original copy (copies) of
contracting authority has provided restrictedly       the tender shall be taken into consideration in the
the possibility of supplying missing information,     course of evaluation.
missing information shall be accepted
accordingly.                                                              Article 84

3. The contracting authority shall inform all         If the tender contains an obvious calculation
tenderers, at the same time, directly, and in         error, it is corrected by the contracting authority
writing about the supply of the missing items,        by calculating the aggregate price based on the
setting out the time limit, as well as the            itemised value of the subject (core data) of the
information missing from each tender.                 contract. All tenderers shall be advised forthwith
                                                      in writing of the correction of the calculation
4. Tenderer may supply missing information            error simultaneously and directly.
that has not been indicated in the request for
missing information, in the case of restricted                            Article 85
supply of missing information within the scope
of the invitation to tender.                          In the course of evaluating tenders, the
                                                      contracting authority may request information
5. After the      missing information has been        from the tenderer in writing and by
supplemented     the contracting authority may        simultaneously informing the other tenderers, for
announce, on      more than one occasions if          the purpose of clarifying the content of
appropriate, a   request for additional supply of     ambiguous     statements,     declarations     or



40
certifications related to the grounds for
exclusion, suitability or other documents                                 Article 87
provided for in the tender notice or the tender
specifications. This, however, may not result in      1. If a tender element to be assessed based on
the modification of the tender.                       the constituent factors appears to involve an
                                                      unfeasible, abnormally low or high, or
                    Article 86                        disproportionate undertaking, the contracting
                                                      authority shall request in writing details of the
1. If a tender contains a consideration               affected constituent elements of the tender which
appearing to be abnormally low, the contracting       it considers relevant and an explanation. The
authority shall request in writing details of the     contracting authority shall notify the other
constituent elements of the tender which it           tenderers of such request thereof simultaneously
considers relevant and an explanation. The            in writing.
contracting authority shall notify the other
tenderers of such request simultaneously in           2. The contracting authority, on the basis of the
writing.                                              explanations received and the documents
                                                      available, shall verify the constituent elements of
2. The contracting authority, on the basis of the     the tender and the feasibility of such, and may
explanations received and the documents               request tenderers to provide information
available, shall verify the constituent elements of   concerning disputed constituent elements in the
the tender, and may request tenderers to provide      tender.
information concerning disputed constituent
elements in the tender.                               3. The contracting authority shall declare the
                                                      tender invalid if it deems the explanation
3. The contracting authority may take into            unacceptable and not reconcilable with economic
consideration objective explanations relating in      rationality.
particular to the cost-efficiency of the
manufacturing process, the works and the              4. The contracting authority must communicate
provision of services, to the technical solutions     to the Public Procurement Council the rejection
chosen, to the exceptionally favourable delivery      of tenders specified under paragraph 3.
conditions available to the tenderer, or to the
originality of the goods, works, or services                              Article 88
proposed by the tenderer, to compliance with
employment protection provisions and working          1.   The tender shall be deemed invalid if
conditions in force a the place of implementation
of the contract for works, services, or goods, or     (a) it is submitted after the expiry of the time
to the possibilities tenderer possesses for               limit to submit tenders stipulated in the
obtaining state support.                                  tender notice;

4. The contracting authority shall declare the        (b) the tenderer failed to provide the tender
tender invalid if it deems the explanation                bond altogether or in accordance with the
unsatisfactory and irreconcilable with economic           prescribed conditions;
rationality.
                                                      (c) the tenderer or its subcontractor does not
5. The contracting authority shall declare                fulfil the conflict of interest criteria
invalid a tender for being abnormally low owing           (Article10);
to state support only if previously they had
requested in writing information in this respect      (d) the tenderer or subcontractor has been
from the tenderer, and the tenderer was unable to         disqualified from the procedure;
prove he obtained the relevant state support
legally.                                              (e) the tenderer or its subcontractor intended to
                                                          be employed for the performance of more
6. The contracting authority shall communicate            than 10% of the contract value does not
to the European Union, through the Public                 comply with the suitability conditions
Procurement Council, the tender deemed invalid            required for delivering under the contract;
according to paragraph 5.



                                                                                                     41
(f) the tenderer or its subcontractor intended to
    be employed for the performance of more           1. In the case of variant (alternative) offers
    than 10% of the contract value does not           only those may be admissible which meet the
    comply with any other conditions stipulated       minimum        requirements    and     technical
    in the tender notice, the tender specifications   specifications laid down in the tender notice or
    and by law;                                       the tender specifications and required by the
                                                      contracting authority.
(g) the consideration offered is abnormally low
    [Article 86 (4) 44];                              2. Contracting authorities may not reject the
                                                      submission of a variant offer on the sole grounds
(h) it contains unfeasible, abnormally low or         that
    high, or excessively disproportionate
    undertaking [Article 87 (3)];.                    (a)

2. The contracting authority must disqualify          (b) it would lead, if successful, to a supply
tenderers from the procedure who (or whose                contract rather than a public service contract,
subcontractor)                                            or vice versa.

(a) submitted the tender in spite of the existence                      Article 89/A
    of grounds for exclusion (Articles 60–61);
(b) grounds for exclusion (Articles 60–62) arose      1. When specified according to Article 58 (3)
    during the course of the procedure.               (a) concerning public procurement technical
                                                      specifications, a tender shall not be declared
3. The contracting authority shall disqualify a       invalid exclusively for the reason the products
tenderer from the procedure if the organization       and services incorporated thereto do not comply
according to Article 66 (2), or Article 67 (4)        with the standards or other proscriptions
                                                      provided in the technical specification if tenderer
(a) is under the effect of grounds for exclusion      in an appropriate manner, using any appropriate
    (Article 60);                                     means shows that the solutions recommended
                                                      comply equivalently to the requirements
(b) became under the effect of grounds for            provided in the public procurement technical
    exclusion (Article 60) during the course of       specification. The technical documentation of the
    the procedure.                                    manufacturer or the certification [Article 58 (6)]
                                                      of an independent, or a professionally recognized
4. The contracting authority may disqualify           body particularly may be considered as
from the procedure those tenderers who                appropriate means.

(a) are not eligible for national treatment           2. When the public procurement technical
    [Article 1 (3)]; or                               specification is provided with reference to
                                                      performance and functional conditions, a tender
(b) offers a product in the tender not eligible for   shall not be declared invalid that complies with
    national treatment due to its place of origin     national standards transposing European
    [Article 1 (3)].                                  standards, European technical approvals,
                                                      common technical specifications, international
5. The place of origin of products shall be           standards,    technical     reference    systems
established based on the rules stipulated in the      established by the European standardization
relevant legislation and in the Council Directive     bodies when these specifications refer to the
on the Community Customs Code.                        performance or functional conditions provided
                                                      by the contracting authority. Tenderer shall
6. The contracting authority need not assess          provide evidence in his tender, appropriately,
invalid tenders based on the Evaluation criteria.     using appropriate means, that the product,
                                                      services or works complying with standards
                    Article 89                        comply with the performance and functional
                                                      conditions provided by the contracting authority.
44
   This provision entered into force on 11            The technical documentation of the manufacturer
January 2007.                                         or the certification [Article 58 (6)] of an



42
independent, or a professionally recognized body        an electronic downward revision of prices, if
particularly may be considered as appropriate           they have indicated this previously in the
means.                                                  invitation to tender. A separate act of legislation
                                                        shall define the detailed rules for the electronic
                    Article 90                          downward revision of prices.

1. Where the criterion for the award of the                                 Article 91
contract is that of the best-value-for-money
tender, the contracting authorities shall give the      1. The contract shall be awarded to the tenderer
elements the scores within the range specified in       who has submitted to the contracting authority an
the tender notice, by the method described in           admissible tender complying with the conditions
Article 57 (3) (d), then weighs the scores given        stipulated in the tender notice and the tender
to the individual constituent elements and              specifications and deemed the most favourable
aggregates the products of multiplication for           based on the Evaluation criteria stipulated in
each tender. The best-value-for-money tender            Article 57 (2).
will have the highest aggregate score.
                                                        2. The contracting authority may only conclude
2. Should the total score of several tenders            the contract with the winner of the procedure or
calculated according to paragraph 1 be identical,       upon the withdrawal of the winner – provided
the tender offering the lower price shall be            that this was stated in the tender notice – with
deemed the best-value-for-money one; while in           the organisation (person) considered the tenderer
the event of identical prices, it shall be the tender   offering the second most favourable terms at the
which received higher score for the constituent         time of the announcement of the results.
factor (having been given a different score) with
the largest weight.                                                         Article 92

3. In the presence of a notary public the               The procedure shall be deemed unsuccessful if
contracting authority may hold a drawing of lots
and declare winner the tenderer selected on the         (a) no tenders have been submitted;
basis of the drawing of lots, if
                                                        (b) only invalid tenders have been submitted;
(a) the contracting authority shall base the
    award of the contract to the tender offering        (c) none of the tenderers, not even the tenderer
    the lowest price and this lowest price is               submitting the best-value-for-money tender,
    contained identically in two or more tenders,           meets the requirements for financial cover
    or                                                      available to the contracting authority;

(b) the evaluation criteria for tenders are the         (d) the contracting authority declares the
    selection of the most economically                      procedure unsuccessful due to its becoming
    advantageous tender, but the most                       incapable to conclude the contract or deliver
    economically advantageous tender cannot be              thereunder (Article 82);
    determined applying the provisions of
    paragraph 2.                                        (e) the contracting authority decides to
                                                            invalidate the procedure due to action by a
4. The winner of the contract award procedure               tenderer that materially damages the
shall be selected by a drawing of lots for                  correctness of the procedure or the interests
tenderers having submitted valid tenders with               of the other tenderers;
identical prices according to paragraph (3) (a),
and for tenderers having identical aggregated           (f) the contracting authority announces the
scores according to paragraph (3) (b).                      procedure unsuccessful based on the results
                                                            of a conciliation procedure.
5.45 After the evaluation of tenders according to
Article 81 (4), the contracting authority may start     (g) the Arbitration Committee of Public
                                                            Procurements annuls a decision by the
45
  This paragraph entered into force on 1 July               contracting authority, and the contracting
2006.                                                       authority decides to conduct a new contract



                                                                                                        43
     award procedure or to relinquish           its   their tenders until the expiry of the new date of
     intention to conduct such procedure.             contract conclusion.

Information on the evaluation of the tenders, the     4. If justified, the contracting authority may
           announcement of results                    announce the results at a date earlier than
                                                      stipulated in the tender notice. The contracting
                    Article 93                        authority      shall   inform      all    tenderers
                                                      simultaneously, directly and in writing of the
1. Within five days of passing a decision to this     new date and time and its reasons, as well as – if
effect, the contracting authority shall inform the    justified – of the new earlier date and time of the
tenderer in writing of its exclusion, or being        contract conclusion [Article 99 (2)], at least two
deemed unsuitable for performing the contract,        business days in advance.
or the classification of its tender as invalid on
any other grounds pursuant to Article 88 (1), as      5. If the announcement of results fails to take
well as of the relevant reasons.                      place at the date and time stipulated in the tender
                                                      notice or modified as per paragraph 2 or 4, the
2. Upon completing the evaluation of the              contracting authority shall – along with bearing
tenders, the contracting authority shall prepare a    all consequences attached to such delays by this
written summary of the tenders following the          Act or other legislation – without delay announce
template specified in the relevant legislation.       the success or the failure of the procedure.

3. The summary as per paragraph 2 shall be                                Article 95
submitted, upon request, to the European
Commission and the Public Procurement                 The tenderers and – in case of contracting
Council. The summary shall be sent to the             authorities receiving public procurement
European Commission via the Public                    aid/support – the representatives of the
Procurement Council.                                  organisations or the persons stipulated in the
                                                      relevant legislation shall be invited to the
                    Article 94                        announcement of results.

1. The contracting authority shall evaluate the                           Article 96
tenders as soon as possible, and subsequently
announce the success or failure of the procedure      1.46 At the announcement of results the
(hereinafter jointly referred to as ‘announcement     contracting authority shall explain the data in the
of results’). The results of the procedure shall be   summary as per Article 93 (2). The written
publicly announced within thirty – or, with           summary shall be handed over to the tenderers
public works, sixty – days from the opening of        present at the announcement of results, and sent
the tenders, on the date of announcing the results    to absent tenderers without delay by telefax or
specified in the tender notice.                       electronically on the day when the
                                                      announcement       was      made,     after     the
2. If justified, the contracting authority may        announcement of results. If the bidder has not
postpone the date of announcing the results on        provided their electronic address or telefax
one occasion, by a maximum of thirty days. Prior      number the written summary shall be posted on
to the expiry of the original time limit, the         the day when the announcement was made.
contracting authority shall inform all tenderers
simultaneously, directly and in writing of the fact   2. At the announcement of results the winner
of, and the reasons for, the postponement and, if     of the procedure shall declare whether it
required [Article 99 (2)], of the new date for        classifies as a micro, small or medium-sized
contract conclusion [Article 99 (2)].                 enterprise under the Act on Small and Medium-
                                                      Size Enterprises and the Support of their
3. If necessary, in cases as per paragraph 2 the      Development.
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       46
                                                         This provision entered into force on 11
                                                      January 2007.


44
3. At or after the announcement of results, the        regarding confidential       business    information
disclosure of such data as are governed by             (Article 73).
Article 73 (2) or have been taken into
consideration by the contracting authority in its                           Article 98
assessment of the tender and its decision, shall
not be limited or prohibited by invoking business      1. The contracting authority shall publish the
secrecy.                                               information regarding the success or the failure
                                                       of the procedure in a notice based on a template
4. At the announcement of the results or within        specified in the relevant legislation.
five days thereafter the tenderer may request that
the contracting authority correct any errors           2. The notice shall be dispatched for
(change of names, incorrectly spelt names,             publication in the Public Procurements Bulletin
mistyped numbers, calculation errors or similar)       no later than within five business days from the
found in the summary referred to in Article 93         announcement of results, or the expiry of the
(2). The contracting authority may correct such        deadline for the announcement of results.
errors at the tenderer’s request as well as in the
absence thereof. The contracting authority shall       3. The notice shall be dispatched for
send the corrected summary simultaneously to           publication pursuant to Article 44 (1) no later
all tenderers within seven days following the          than within five business days from the
announcement of the results.                           conclusion of the contract, or, in the absence
                                                       thereof , from the expiry of the deadline for the
5. Within fifteen days counted from the date of        conclusion of the contract.
the announcement of the contract award, or if the
contract has been concluded prior to the fifteenth     4. The contract award procedure shall end
day counted from the announcement of the               upon the publication of the notice as per
contract award, the contracting authority may          paragraph 2 or, if the contract conclusion takes
correct the written summary referred to in Article     place at a later date, then at the time of the latter.
93 (2), and if appropriate may retract the
communication regarding invalidity should they                     Conclusion of the contract
observe after the announcement of the contract
award that the announcement of the award (or of                             Article 99
the invalidity) violated law, and the correction
provides legal remedy thereto. The contracting         1. Contracts shall be concluded based on
authority shall communicate the date for the           successful contract award procedures, in writing
announcement of the corrected summary and of           with the organisation (person) stipulated in
the award (the invalidity) two working days            Article 91, in accordance with the content of the
before such an announcement, simultaneously to         tender notice, the tender specifications and the
all tenderers. Article 93 and Article 95, as well as   tender. If the contracting authority allowed
paragraphs (1) to (4) of this Article shall apply in   submitting tenders for parts of the public
connection with the corrected result (invalidity),     procurement, then contracts shall be concluded
in addition the contracting authority may ask          with the various winners of the different parts
tenderers to maintain the validity of tenders until    (Article 91). As required and in agreement with
the new date of the contract award expires.            the tenders and the tender notice, this contract
Unless otherwise declared the tender shall be          may include the conditions for cooperation
binding for tenderer until the expiry of the new       between tenderer contracting parties.
date for the contract award.
                                                       2. The planned date and time of contract
                    Article 97                         conclusion shall be stipulated in the tender notice
                                                       on the condition that it shall not be earlier than
On request by tenderers submitting admissible          the eighth or later than the thirtieth – or, with
tenders, the contracting authority shall provide       public works, sixtieth – day from the
information regarding the features of the winning      announcement of results.
tender and its advantages over the tender
submitted by the requestor within five business        3. The contracting authority shall be relieved
days from receiving the request, taking into           of its obligation to conclude a contract with the
consideration the winning tenderer’s interests         organisation (person) as per Article 91 only if –



                                                                                                         45
due to unforeseeable and unavoidable reasons           3. The invitation to participate may specify in
beyond its control – material circumstances arise      particular
after the start of the public procurement, which
make the contracting authority incapable to            (a) the planned date of the announcement of the
conclude or deliver under the contract.                    results of the procedure and of contract
                                                           conclusion and
4. The contract shall be public, with the
exception of the annex as per Article 73 (1), on       (b) information regarding the availability of the
the condition that the contents thereof are not in         tender specifications and the tender bond
contradiction with Article 96 (3), and its content
shall classify as data of public interest. The         4.    The invitation to participate shall specify
contracting authority shall publish that part of the
contract that is considered being data of public       (a) the deadline and address for submitting the
interest on their website, if it has one,                  application to participate (participation
immediately after having signed the contract.47            deadline);

                                                       (b) the place and time of             opening       the
                      Title 4                              applications to participate;

     Overall rules of two-stage procedures             (c) the parties authorised to attend the opening
                                                           of the applications to participate;
             The participation stage
                                                       (d) the date and time of announcing the results
                   Article 100                             of the participation stage;

1. Negotiated procedures and restricted                (e) the planned date of sending the invitation to
procedures, which start with the publication of a          tender (Article 119).
notice, as well as the competitive dialogue, are
two-stage procedures.                                  5. In the participation stage of the procedure,
                                                       participation is not conditional upon depositing a
2. In the first – participation – stage of such        tender bond.
procedures, the contracting authority shall not
request and the candidate shall not submit                  Participation documentation or descriptive
tenders. In the participation stage the contracting                         document
authority shall decide about the candidate’s
suitability or unsuitability to deliver under the                           Article 102
contract.
                                                       1. In order to facilitate the submittal of suitable
 Start of the procedure, invitation to participate     applications to participate the contracting
                                                       authority may choose to draw up participation
                   Article 101                         documentation in restricted and in negotiated
                                                       procedures, and in competitive dialogues shall
1. The two-stage procedures start with the             draw up a descriptive document. The contracting
invitation to participate, which shall be issued by    authority shall specify in the invitation to
the contracting authority based on the template        participate the manner, time limit, location and
specified in the relevant legislation.                 financial    conditions     for   obtaining the
                                                       participation documents, or the descriptive
2. The invitation to participate shall be              documents (in the following: participation
governed by the provisions under open                  documents). The contracting authority may
procedures (Title 3) regarding tender notice as        prescribe in the invitation to participate that
appropriate, with differences applicable as per        participation in the procedure is subject to the
paragraphs 3–4 and Article 120 (2).                    purchase or receipt of the participation
                                                       documentation. If more than one participant
                                                       submit a joint application for participation, it
47
  This provision entered into force on 7 July          shall be appropriate if one of these purchases or
2007.                                                  receives the participation documentation.



46
                                                       than eight days prior to the expiry of the
2. The contracting authority shall ensure that         participation deadline.
the participation specifications be available from
the date of issuing the notice containing the          2. Such additional information shall be given
invitation to participate until the expiry of the      no later than four days prior to the expiry of the
deadline (Article 107).                                participation deadline.

3. Provided they have been requested in                3. Such additional information shall be given
reasonable time and paid for, the participation        without harming the equal opportunities of
specifications shall be forwarded by the               candidates. The full contents of such additional
contracting authorities or its designated              information shall be made accessible, or sent, to
organisation within two business days of               the candidates. The information provided shall
receiving such request.                                not result in the modification of the participation
                                                       notice or participation documents.
4. The consideration for the participation
documents shall be established on the basis of         4. Additional information may also be given in
the costs incurred during the contract award           the form of consultations. In such cases the
procedure in relation to its production and            invitation to participate shall specify the date and
distribution to the candidates.                        time of the consultation. Minutes shall be drawn
                                                       up of the consultation, sent to the attending
5. The tender specifications and their                 candidates within five days from the consultation
consideration shall be returned within ten days if     and made accessible to the other candidates also.

(a) the contracting authority        revokes    the               Applications to participate
    invitation to participate;
                                                                          Article 104
(b) the participation stage of the procedure
    proves unsuccessful under Article 115 (c),         1. The candidate shall draw up and submit the
    (e) or (f);                                        application to participate in accordance with the
                                                       substantive and formal requirements stipulated in
(c) the contracting authority fails to announce        the invitation to participate and the participation
    the results of the participation stage until the   documents.
    result announcement date stipulated in the
    invitation to participate or in its                2. Entities liable to the grounds for exclusion
    modification;                                      shall not participate in either the participation or
                                                       the tendering stage. As regards the grounds for
(d) the contracting authority does not send the        exclusion, candidates shall observe Article 63
    invitation to tender within five business days     (1)–(7)49.
    from the announcement of results.
                                                       3. Furthermore, candidates shall certify, in the
6.48                                                   manner stipulated in the invitation to participate,
                                                       their financial and economic standing, as well as
           Supplementary information                   technical      capability    and       professional
                                                       qualification to perform under the contract, and
                   Article 103                         shall provide such certifications by including
                                                       them in the application to participate.
1. In order to be able to submit suitable
applications to participate, candidates may                               Article 105
submit requests in writing for additional
(interpretative) information regarding the             1. The application to participate shall designate
contents of the invitation to participate or the       the following, if required so by the contracting
participation documents from the contracting           authority in the invitation to participate:
authority or its designated organisation no later

48                                                     49
  This provision is not in force from 11 January         This provision is in effect from 11 January
2007.                                                  2007.


                                                                                                       47
(a) the part of the contract award procedure, in
    relation to which the candidate will conclude       1. The candidate shall have the right to forbid
    contracts with third parties, without               expressly the public disclosure of business
    identifying the relevant organisations              secrets disclosed in the application to participate
    (persons), and                                      in a separate annex attached thereto.

(b) subcontractors the candidate intends to             2. However, the candidate shall not have the
    employ for the performance of more than             right to forbid the disclosure of its name, address
    10% of the contract value.                          (registered seat, residence). Nor is it possible to
                                                        forbid, by invoking business secrecy, the
2. Designation and utilisation as per paragraph         disclosure of such data as are subject to the
1 above shall not impact the candidate’s liability      reporting and data provision obligation relating
for performance.                                        to publication of data of public interest and data
                                                        publicised in public interest, as specified in the
3. The       candidate      shall    not     involve    relevant legislation.
subcontractors in delivering under the contract
who are liable to the grounds for exclusion                          Participation deadline
specified in Articles 60 and 61. Measures as per
Article 63 (1) to (7)50 shall be taken in relation to                      Article 107
subcontractors intended to be employed for the
performance of more than 10% of the contract            1. The contracting authority shall not
value liable to the grounds for exclusion only if       determine the participation deadline earlier than
the candidate is required to specify such               a period of thirty-seven days from the day of
subcontractors in accordance with paragraph 1           issuing the notice containing the invitation to
(b) above. Otherwise, and in respect of                 participate. The participation time limit of at
subcontractors intended to be employed for the          lease thirty-seven days may be shortened by not
performance of less than 10% of the contract            more than seven days, provided the notice
value, candidates shall formally declare in their       containing the invitation to participate was
applications to participate that they will not          dispatched by the contracting authority using
employ any subcontractors liable to the grounds         electronic means according to the provisions of a
for exclusion.                                          separate act of legislation.

4. If required by the contracting authority in          2. In all cases, the participation deadline shall
the invitation to participate, the financial and        be determined in a manner that allows sufficient
economic standing, as well as technical                 time for submitting suitable applications to
capability and professional qualification to            participate.
perform under the contract shall be certified for
all those subcontractors that the candidate             3. If justified, the contracting authority shall
intends to rely on to an extent exceeding 10% ten       have the right to extend the participation
per cent of the public procurement value, and           deadline stipulated in the notice initiating the
such certifications shall be included in the            procedure, on one occasion by publishing the
application to participate.                             modified deadline and the reasons therefore in a
                                                        notice, before the expiry of the original deadline.
5. If the subject of the public procurement is a
public works or public works concession and the         4. The participation deadline shall not be
contracting authority is an organization                brought forward.
according to Article 22 (1) (a) or (b), it shall
prescribe to the tenderer in the invitation to                             Article 108
tender to indicate in his offer the subcontractors
envisaged to be engaged in excess of ten percent        1. Until the expiry of the participation
of the value of the public procurement.                 deadline, the contracting authority shall have the
                                                        right to modify the conditions stipulated in the
                    Article 106                         invitation to participate and the participation
                                                        specifications. Such modified conditions shall be
50
  This provision is in effect from 11 January           announced prior to the expiry of the original
2007.                                                   deadline in a new notice, which shall set a new



48
participation deadline. The deadline shall not be       2. At the opening of the applications to
shorter than stipulated in Article 107 (1) in such      participate, the contracting authority, the
cases either.                                           candidates, and persons invited by them, and – in
                                                        case of candidates receiving support for the
2. The contracting authority shall have the             public procurement – the representatives of
right to revoke the invitation to participate until     organisations and persons determined in the
the expiry of the participation deadline. The           relevant legislation shall have the right to be
contracting authority shall announce such               present.
revocation in a notice dispatched prior to the
expiry of the deadline to be published and shall        3. Upon opening the applications to participate,
simultaneously inform all candidates in writing.        the names and addresses (registered seats,
                                                        residences) of the candidates shall be announced.
3. The candidate shall have the right to modify
its application to participate until the expiry of      4. The contracting authority shall draw up
the participation deadline.                             minutes of the opening and the announcing of
                                                        the applications to participate, and shall
 Submission and opening of the applications to          distribute such minutes to all candidates within
                 participate                            five days from the day of opening.

                    Article 109                             Assessment of applications to participate

1. The application to participate shall be                                 Article 111
submitted, in writing and sealed and directly or
by post, to the address specified in the invitation     1. In the course of assessing the applications to
to participate, by the expiry of the deadline to        participate, the contracting authority shall check
participate.                                            the applications for compliance with the
                                                        conditions set out in the invitation to participate,
2. The contracting authority may permit the             the participation specifications and by law.
submission of applications to participate by an
alternative method to that specified in paragraph       2. The suitability or unsuitability of the
1, provided that it can guarantee that the              candidate and its subcontractor intended to be
applications will not be opened before the expiry       employed for the performance of more than 10%
of the deadline to participate and disclosed to         of the contract value shall be assessed against the
unauthorised users within the sphere of interest        stipulations of the invitation to participate. The
of the contracting authority.                           assessment may involve the verification of the
                                                        authenticity of the certifications.
3. The contracting authority shall establish the
option as per paragraph 2 in the invitation to          3. The contracting authority shall determine
participate, and shall also require the candidate       which applications to participate are invalid or
to confirm the application in writing until the         whether there are any candidates to be excluded
expiry of the deadline set by the contracting           from the procedure.
authority. The contracting authority shall
disclose the technical conditions of the                4. The contracting authority shall assess the
alternative method provided for in paragraph 2 in       applications to participate except if – due to
the invitation to participate or in the participation   unforeseeable and unavoidable reasons beyond
documents.                                              its control – material circumstances arise after
                                                        the start of the award procedure, which make it
                    Article 110                         incapable to conclude the contract or to deliver
                                                        under the contract once concluded. In such cases
1. The documents containing the applications            the contracting authority shall declare the
to participate shall be opened at the time of the       procedure unsuccessful.
expiry of the participation deadline. The tender
opening procedure shall last until all applications                        Article 112
submitted by the expiry of the time limit have
been opened.                                            1. The contracting authority shall state in the
                                                        invitation to participate whether they shall



                                                                                                        49
provide for candidates in the stage of                 rectified by the candidate according to paragraph
participation the opportunity to supply missing        5.
information, as well as the scope for the supply
of such information. In the case of procedures for     7. When the contracting authority provides for
public procurement supported by sources from           more than one opportunity to supply missing
the European Union the contracting authority           information, deficiencies indicated earlier shall
shall provide at least one occasion for the            not be rectified as a subsequent supply of
opportunity to supply missing information.             missing information.

2. When the contracting authority provides for         8. After the supply of missing information the
a fully comprehensive supply of missing                contracting authority shall check whether the
information, and the examination of the                contents of the copies of the tender for
applications to participate prove this necessary, it   participation submitted and not effected by the
may provide for every participant, subject to          request for additional information, are identical
identical conditions, the opportunity to               with the contents of the original tender for
subsequently attach or to rectify deficiencies in      participation. If there is any variance, or if the
certifications and declarations related to grounds     request for supplying additional information has
of exclusion and to compliance, or as well as in       not, or has not been fully fulfilled, only the
other documents stipulated in the invitation to        original copy (copies) of the tender for
participate or in the participation documentation,     participation shall be considered in the course of
or to rectify formal deficiencies related to the       evaluation.
application to participate. If in the invitation to
participate a limited supply of missing                                   Article 113
information has been provided, the contracting
authority shall provide an opportunity for this        In the course of assessing the applications to
accordingly.                                           participate, the contracting authority may request
                                                       information from the candidate in writing while
3. When supplying missing information the              simultaneously informing the other candidates to
candidate shall not supplement their application       that effect, for the purpose of clarifying the
to participate by naming a new joint tenderer or       content of ambiguous statements, declarations or
subcontractor, was well as a new organization          certifications. This, however, may not result in
according to Article 66 (2) or Article 67 (4), in      the modification of the application to participate.
addition a limited supply of missing information
shall extend only to the deficiencies indicated by                        Article 114
the contracting authority in the invitation to
participate.                                           1. The application to participate shall be
                                                       deemed invalid if
4. The contracting authority shall inform
simultaneously, directly, in writing all               (a) it is submitted after the expiry of the
candidates, indicating the time limit for                  participation deadline stipulated in the
providing missing information, as well as the              invitation to participate;
deficiencies in each tender.
                                                       (b) the candidate submits a tender [Article 100
5. A candidate my rectify a deficiency not                 (2)];
included in the announcement of missing
information, in case of a limited opportunity for      (c) the applicant or its subcontractor fails to
providing missing information within the scope             meet the conflict-of-interest regulations
of the invitation to participate.                          [Article 10 (3) and (5)];

6. After the missing information has been              (d) the candidate or its subcontractor has been
provided the contracting authority may, on                 disqualified from the procedure;
several occasions if appropriate, announce a new
opportunity to provide missing information,            (e) the candidate or its subcontractor 10% does
when they observe a deficiency indicated in                not comply with the suitability conditions
previous announcements, and this has not been              required for delivering under the contract;




50
(f) it does not comply with any other conditions                          Article 116
    stipulated in the invitation to participate, the
    participation documents or by law.                 1. The contracting authority shall inform the
                                                       candidate in writing of its exclusion, the
2. The contracting authority must disqualify           ascertainment of its unsuitability for delivering
candidates from the procedure, if                      under the contract, or the declaring invalid of its
                                                       application to participate for any other reasons
(a) the candidate (or its subcontractor)               pursuant to Article 114 (1), as well as the reasons
    submitted the application to participate in        therefore within five days from the decision to
    spite of the existence of grounds for              this effect.
    exclusion (Articles 60–61);
                                                       2. The contracting authority shall prepare a
(b) grounds for their exclusion (Articles 60–62)       written summary based on the template in the
    arose during the course of the procedure.          relevant legislation about the applications to
                                                       participate upon the completion of their
3. The contracting authority may disqualify            assessment, in which summary it shall provide
from the procedure those candidates who are not        reasons for the suitability or unsuitability of
eligible for national treatment [Article 1 (3)].       candidates according to the suitability criteria
                                                       stipulated in the invitation to participate.
                   Article 115
                                                                          Article 117
The participation stage and the procedure shall
be deemed unsuccessful if                              1. The contracting authority shall assess the
                                                       applications to participate within as short a
(a) no applications to participate have been           timeframe as possible, and thereon announce the
    submitted;                                         success or failure of the participation stage
                                                       (hereinafter jointly referred to as ‘announcement
(b) only invalid applications to participate have      of results’). The results of the participation stage
    been submitted;                                    shall be publicly announced within thirty – or,
                                                       with public works, sixty – days from the opening
(c) the contracting authority declares the             of the applications to participate, at the result
    procedure unsuccessful due to its becoming         announcement deadline stipulated in the
    incapable to conclude the contract or deliver      invitation to participate.
    thereunder [Article 111 (4)];
                                                       2. If justified, the contracting authority may
(d) the contracting authority decides to               postpone the date of the announcement of results
    invalidate the procedure due to action by a        on one occasion, by a maximum of thirty days.
    candidate that materially damages the              Prior to the expiry of the original deadline, the
    correctness of the procedure or the interests      contracting authority shall inform all candidates
    of the other candidates;                           directly and in writing of the fact of, and reason
                                                       for, the postponement.
(e) the contracting authority announces the
    procedure unsuccessful based on the results        3. If justified, the contracting authority may
    of a conciliation procedure.                       announce the results at a date earlier than
                                                       stipulated in the invitation to participate. The
(f) the Arbitration Committee of Public                contracting authority shall inform all candidates
    Procurements annuls a decision by the              simultaneously, directly and in writing of the fact
    contracting authority, and the contracting         of, and reason for, the new date and time
    authority decides to conduct a new contract        minimum two business days in advance.
    award procedure or to relinquish the
    intention to conduct such procedures.              4. If the announcement of results fails to take
                                                       place at the date and time stipulated in the
Information on the assessment of applications to       invitation to participate or modified as per
 participate, the announcement of the results of       paragraph 2 or 3, the contracting authority shall –
              the participation stage                  along with bearing all consequences attached to
                                                       such delays by this Act or other legislation –



                                                                                                       51
without delay announce the success or the failure     absence thereof. The contracting authority shall
of the participation stage.                           send the corrected summary simultaneously to
                                                      all candidates within seven days following the
5. The candidates and – in case of candidates         announcement of the results.
receiving public procurement aid/support – the
representatives of the organisations or persons             Tendering stage, invitation to tender
stipulated in the relevant legislation shall be
invited to the announcement of results.                                  Article 119

                   Article 118                        If the participation stage is successful, then the
                                                      contracting authority shall, within five business
1.51 At the announcement of the results of the        days from the announcement of results,
participation stage the contracting authority shall   simultaneously send a written invitation to tender
explain the data in the summary as per Article        to candidates selected in compliance with the
116 (2). The written summary shall be handed          rules of the restricted or the negotiated
over to the candidates present at the                 procedures and the invitation to participate and
announcement of results, and sent to absent           classified as suitable.
candidates without delay by telefax or
electronically on the day when the                                       Article 120
announcement        was     made,     after     the
announcement of results. If the candidate has not     1. As a minimum, the invitation to tender shall
provided either their telefax number or their         contain the following:
electronic address, the written summary shall be
posted on the day of the announcement.                (a) the name and address, telephone and
                                                          facsimile number (e-mail) of the contracting
2. The summary shall also be sent to the                  authority;
Council for Public Procurement by the deadline
stipulated in paragraph 1.                            (b) reference to the issued invitation          to
                                                          participate and the date of its issue;
3. If the participation stage is unsuccessful
under Article 115 (c), (d) (e) or (f), or if the      (c) the method of, and deadline for, supplying
contracting authority decides to conduct a new            the tender specifications, their place of
contract award procedure, then it must inform             obtainment and financial conditions, if such
forthwith the Office for Official Publications of         conditions were not specified by the
the European Communities of its decision                  contracting authority in the invitation to
through the Council for Public Procurement.               participate and if it did not send the tender
                                                          specifications simultaneously with the
4. At or after the announcement of results, the           invitation to tender;
disclosure of such data as are governed by
Article 106 (2) or have been taken into               (d) as required in the invitation to participate
consideration by the contracting authority in its         and if necessary, the definition of
assessment of the application to participate and          certifications, declarations and documents to
its decision, shall not be limited or prohibited by       be attached to the tender, which shall prove
invoking business secrecy.                                that neither the tenderer nor its subcontractor
                                                          is liable to the grounds for exclusion at the
5. At the announcement of the results or within           time of the tendering stage,;
five days thereafter the candidate may request
that the contracting authority correct any errors     (e) whether the correction of deficiencies is
(change of names, incorrectly spelt names,                allowed or prohibited ;
mistyped numbers, calculation errors or similar)
found in the summary referred to in Article 116       (f) the deadline for submitting the tender;
(2). The contracting authority may correct such
errors at the candidate’s request as well as in the   (g) the tender submittal address;

51
   This provision entered into force on 11            (h) the language (languages) of the tender;
January 2007.


52
(i) the place and time of opening the tenders;         attach to the tender those certifications and
                                                       declarations that it had already attached to the
(j) the parties authorised to be present at the        application to participate, except if the
    opening of the tenders;                            previously submitted certification or declaration
                                                       is not adequate for the purposes of certifying as
(k) the validity period of the tender (except in       required.
    negotiated procedures);
                                                       5. The contracting authority shall have the
(l) the date and time of the announcement of           right to extend the time limit specified for
    results and the planned date and time of           submitting the tender stipulated in the invitation
    contract conclusion, if these were not             to tender on one occasion if justified, provided
    included, or were different, in the invitation     that it informs all the tenderers before the expiry
    to participate;                                    of the original deadline simultaneously, directly
                                                       and in writing of the modified deadline and the
(m) the date of sending the invitation to tender.      reason for its extension.

2. Under open procedures (Title 3) Article 54          6. Up until the expiry of the time limit to
(6) (a), Article 56 (5), Article 59, Article 79 (3)    submit tenders, the contracting authority shall
and Article 83, invitation to tender shall be          have the right to modify conditions not given in
construed as tender notice.                            the invitation to participate and determined in the
                                                       invitation to tender or the tender specifications.
3. The invitation to tender may contain the            Prior to the expiry of this time limit, all tenderers
requirements and conditions that, according to         shall be notified of the modified conditions
the rules of open procedures, can be stipulated in     simultaneously, directly and in writing, and at
the tender specifications also [Article 51 (3),        the same time a new time limit to submit tenders
Article 57 (5), Article 58 (1) and (5), Article 79     shall be set. Even in such cases, the deadline
(3)].                                                  cannot be shorter – for restricted procedures –
                                                       than stipulated under Article 122.
                   Article 121
                                                       7. The contracting authority shall have the
1. The contracting authority must ensure that          right to revoke the invitation to tender until the
the tender specifications are available for            expiry of the time limit to submit tenders, if –
minimum thirty days from the day of sending the        due to unforeseeable and unavoidable reasons
invitation to tender until the expiry of the           beyond its control – material circumstances arise
deadline for submitting the tender.                    after sending the invitation to tender, which
                                                       make it incapable to conclude the contract or to
2. Tenderers may request supplementary                 deliver under the contract once concluded. All
information in respect of tendering, relating to       tenderers shall be informed simultaneously,
the content of the invitation to participate,          directly and in writing of the revocation of the
invitation to tender or the tender specifications.     invitation to tender prior to the expiry of the time
                                                       limit to submit tenders. In such cases the
3. The tenderer shall draw up and submit its           contracting authority shall declare the procedure
tender in compliance with the content and format       unsuccessful. The notice about the unsuccessful
requirements stipulated in the invitation to           outcome of the procedure shall be published
participate, the invitation to tender and the tender   according to Article 98 with the derogation that
specifications. The tender shall contain               the contracting authority shall dispatch the notice
especially the tenderer’s explicit statements          referred to in paragraph 2 within five business
regarding the conditions of the invitation to          days after the tenderers are informed as referred
participate and the invitation to tender, the          to above.
delivery under the contract and the requested
consideration.                                         8. In the course of evaluating the tenders the
                                                       contracting authority shall check tenders for
4. The tenderer and its subcontractor shall            compliance with the conditions set forth in the
follow the procedure stipulated in the invitation      invitation to participate, the invitation to tender,
to tender – based on Article 120 (1) (d) –             the tender documentation, in law, as well as in
regarding grounds for exclusion. It need not



                                                                                                        53
the descriptive document in the case of a
competitive dialogue.                                                 Invitation to tender

9. The contracting authority shall evaluate the                           Article 123
tenders except if – due to unforeseeable and
unavoidable reasons beyond its control –               1. The contracting authority shall have the
material circumstances arise after the expiry of       right to set the range of the number of tenderers
the time limit to submit tenders, which make it        by sending invitations to tender to a number of
incapable to conclude the contract or to deliver       candidates falling within the upper limit of the
under the concluded contract. In such cases the        range.
contracting authority shall declare the procedure
unsuccessful.                                          2. The range must include minimum five
                                                       tenderers. The range shall be adjusted to the
10. The supply of missing information in the           subject of the public procurement and shall under
stage of the presentation of a tender shall be         all circumstances provide for genuine
governed by the provisions of Article 83.              competition.

                      Title 5                          3. If the contracting authority intends to set a
                                                       range, it shall do so in the invitation to
             Restricted procedures                     participate.

         The time limit to submit tenders              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
                   Article 122                         suitable candidates exceeds the range.
                                                       Prioritisation can be determined in the area of
1. In the tendering stage of the two-stage             certifying technical capability and professional
procedure, the time limit to submit tenders shall      qualification for delivery under the contract by
be determined by the contracting authority as a        the candidate.
period not shorter than forty days from sending
the invitation to tender.                              5. The contracting authority, according to the
                                                       range of the number of tenderers set, shall invite
2. If minimum fifty-two days, but not more             the candidates selected on the basis of financial
than twelve months prior to dispatching the            and economic, and technical as well as
notice containing the invitation to participate, the   professional capabilities, simultaneously, directly
contracting authority had dispatched a notice          and in writing to tender. When the number of
containing preliminary summary information and         candidates qualified as capable is less than the
if it had contained the data as per the notice         lower number in the range, the contracting
template of the invitation to participate and          authority may continue the procedure with
available at the time of dispatching the notice        inviting to tender the candidates that qualify as
containing such information, then deadlines            capable. If the contracting authority does not set
shorter than stipulated in paragraph 1 may also        a range, then it shall invite all the qualified
be defined. In such cases the time limit to submit     candidates to tender. Candidates invited to tender
tenders shall be minimum twenty-six days from          shall not submit joint tenders.
sending the invitation to tender.
                                                                            Title 5/A
3. The time limit according to paragraph 1 of
not less than forty days and according to                       COMPETITIVE DIALOGUE
paragraph 2 of twenty-six days to submit a
tender may be shortened by not more than five          Application of the procedure, general provisions
days, provided the contracting authority made
accessible the documentation, free-of-charge and                             123/A
fully, for tenderers directly by electronic means
from the day when the invitation to tender was         1. The contracting authority may make use of
dispatched, and provides the access data in the        the competitive dialogue where
invitation.



54
(a) they are not able to define, or to define in the   2. The descriptive document shall contain, in
    detail needed for using the open or the            particular, a definition, to the extent the
    negotiated     procedure,      the    technical    contracting authority is capable of, concerning
    specifications concerning the subject-matter       the subject-matter of the public procurement, the
    of the public procurement,                         related technical specifications for the public
                                                       procurement, as well as the terms of the contract.
(b) they are not able to define, or to define in the
    detail needed for using the open or the            3. The contracting authority may indicate in
    negotiated procedure, the type of the              the invitation to participate who they wish to
    contract, or the legal or the financial            invite to participate in the procedure. Besides
    conditions thereof.                                those so indicated, all may request participation
                                                       in the procedure on the basis of the invitation to
2. The conditions specified in point (a) and (b)       participate, which are capable of fulfilling the
shall not be the consequence of any negligence         contract. The contracting authority shall refer to
on the part of the contracting authority.              this in the invitation to participate.

3. In the competitive dialogue the contract               Special rules for the tendering stage of the
shall be awarded on the sole basis of the award                      competitive dialogue
criterion for the most economically advantageous
tender.                                                                  Article 123/C

4. The dialogue between the contracting                1. In the tendering stage of the competitive
authority and one or more candidates in the            dialogue candidates first draw up solutions, the
competitive dialogue aims at defining in the           contracting authority, during one or more stages
detail needed for the contract award the technical     as indicated in the invitation to tender, continues
specifications of the public procurement               a dialogue with them about the solutions. The
concerning the subject-matter of the public            candidates subsequently shall submit their final
procurement, as well as the type of the contract       tenders that shall be evaluated by the contracting
or the legal or financial conditions thereof.          authority according to Article 121 (8).

5. During the dialogue the contracting                 2. The shortest time limit specified in this
authority shall ensure equality of treatment           Chapter shall not apply in the tendering stage of
among all tenderers, and in particular the             the competitive dialogue, the time limit shall be
contracting authority shall provide to all             determined in a manner that shall provide
tenderers any information they give to any             sufficient time for drawing up an appropriate
tenderer.                                              tender, ensuring equal possibilities for all
                                                       tenderers.
 Special rules for the participation stage of the
              competitive dialogue                     3. Until the final tenders are submitted the
                                                       binding period for the tender according to
                  Article 123/B                        Articles 76 to 78 shall not be applicable either
                                                       for the tenderer or for the contracting authority,
1. Besides the contents provided for in Article        as well as neither shall the binding period for the
101 (4), the invitation to participate shall           contracting authority concerning the tendering
contain:                                               stage apply according to Article 108 (1), and
                                                       Article 121 (6). Nevertheless, the subject-matter,
(a) the information concerning the availability        as well as the characteristics for the conditions
    of the descriptive document;                       and for the circumstances of the contract
                                                       awarded on the basis of the procedure shall not
(b) information according to Article 57 (3) with       change either the subject-matter, or the contract
    the option of presenting in detail the method      criteria of the intended procurement as stated at
    (methods) pursuant to Article 57 (3) (d), in       the start of the public procurement [Article 35
    the documentation that shall be drawn up in        (2)] to an extent that would not have permitted
    the stage of tendering.                            the application of the competitive dialogue.




                                                                                                         55
4. A tender guarantee may be specified for a
failure of the contract award exclusively subject      (e) the statement whether the candidate agrees
to a reason caused by the tenderer.                        to a joint dialogue with the other candidates,
                                                           and to the use entirely, or a portion of the
                  Article 123/D                            candidate’s proposed solution during the
                                                           definition regarding the requirements for the
1. In addition to the provisions according to              subject-matter of the procurement.
Article 120 (1), the invitation to tender shall
specify                                                4. The candidate shall not prohibit the
                                                       publication of their name, address (locality,
(a) the time and the location of the first             residence), as well as of any fact, information,
    dialogue;                                          solution or data (in the following altogether:
                                                       data) which shall be assessed according to the
(b) where the contracting authority shall              award criteria. A reference to a business secret
    conduct a competitive dialogue in several          shall not restrict nor prohibit the publication of
    stages, the stages of the dialogue, and the        data that is subject to the obligations of data
    upper limit of the number of candidates            provision and communication according to a
    selected for the dialogue following the stage      separate act of legislation concerning data that
    in question;                                       are public in general interest and that are public
                                                       data regarding general interest.
(c) the language for the dialogue;
                                                                         Article 123/E
(d) where the contracting authority specifies
    payment to one or more candidates, the             1. The dialogue shall be conducted jointly with
    relevant rules they set forth for this purpose.    the candidates only if all candidates have so
                                                       agreed.
2. The        documentation       shall     contain,
particularly, the criteria not yet specified among     2. Dialogues may be conducted in one or in
the criteria provided by Article 123/A (1) for         more stages. In the case of a dialogue with
which the contracting authority is asking for          several stages the contracting authority may
solutions from the candidates, and with respect        invite for successive stages only candidates that
to such criteria what are the requirements or          have submitted the most favourable proposal
expectations of the contracting authority.             (variant of proposal) in the first, or in the
                                                       successive stage for the solution specified in the
3. In addition to the provisions in Article 121        invitation to participate on the basis of the
(3) and (4) the proposed solution shall contain        conditions according to Article 57 (3). The
                                                       number of candidates shall not be less than three
(a) the proposal, regarding one or more                even after the last stage of the discussion. The
    solution, of the tenderer concerning the           proposed solutions of candidates that have
    conditions according to paragraph 4, as well       submitted varying solutions shall be compared
    as                                                 on the basis of the conditions specified in the
                                                       invitation with respect to Article 57 (3). Where a
(b) the preliminary tender of the candidate            candidate submits a multi-variant proposal for
    regarding the fulfillment of the contract          solution, the individual variant proposals shall be
    according to the technical, legal, or financial    considered as independent proposals, and the
    criteria proposed by that candidate, as well       contracting authority is not bound to invite to a
    as                                                 successive stage (stages) of the dialogue any
                                                       specific solution proposed by a candidate.
(c) the statement regarding what part of which
    proposed solution is a business secret, as         3. Where a solution proposed by a candidate
    well as                                            does not contain a proposal concerning Article
                                                       123/D (2), or where the method of the solution
(d) the statement regarding what information           contained in such a proposal (or in a variant
    from the proposed solution may be                  proposal) shall not be in compliance with the
    communicated to the other candidates during        conditions defined by the contracting authority
    the dialogue,                                      regarding the subject-matter of the public



56
procurement, the relevant public procurement           factors or the weight of such defined in the
technical specifications, as well as the contract      invitation to tender; the justification of the
award requirements, or furthermore, with the           modification shall be stated in the documentation
frame and the expectations of the contracting          provided to draw up the final tender.
authority concerning the elements that are the
subject of the proposal, the contracting authority     4. Where the requirements according to
shall declare invalid the proposed solution or any     paragraph 2 do not exist, tenderers shall draw up
variant of that solution, and shall proceed            their final tenders by finalizing the previous
according to Article 93 (1).                           proposal for solution.

4. During a successive dialogue with the                                 Article 123/G
candidates selected according to paragraphs 2
and 3 the contracting authority shall not modify       1. The final time limit for submitting a tender,
requirements, and the candidates shall submit          the place of this submitting and the date for
proposed solutions that are identical or more          opening the tenders shall be announced in the
favourable for the contracting authority,              invitation to submit a final tender.
compared to the previous solution.
                                                       2. In the case according to Article 123/F (2), in
5. The contracting authority for every dialogue        addition to the provisions in paragraph 1, the
shall draw up minutes that shall be signed by all      announcement regarding submitting a final
candidates that participated in the stage in           tender shall also contain data in connection with
question not later than by the commencement of         the availability of the documentation.
the subsequent stage of the dialogue (in the case
of a single stage or the last stage not later than     3. Tenderer may submit a final offer, even if
two days after the dialogue ended), and a copy of      the contracting authority used a proposal to draw
such minutes shall be handed over or dispatched        up the invitation to tender and the documentation
to them within two working days.                       that was not made by him.

                  Article 123/F                        4. The final tender, in addition to          the
                                                       provisions of Article 88 (1), shall be invalid
1. After the conclusion of the dialogues the           where the method of solution with respect to
contracting     authority     in    writing     and    Article 123/D (2) does not comply with the
simultaneously shall ask all candidates (in the        requirements that were defined by the
case of a one stage dialogue all suitable              contracting authority concerning the subject-
participants not subject to Article 123/E (3) who      matter of the public procurement, the relevant
participated in the last stage to submit their final   public procurement technical specification, as
tender.                                                well as with the frame and the expectations of
                                                       the contracting authority, defined regarding the
2. Where all candidates in their proposed              contract award requirements or with the elements
solution have agreed to a joint dialogue with the      that are the subject of the proposal.
other candidates, and to the use entirely, or a
portion of the candidate’s proposed solution           5. The contracting authority, if justified, may
during the definition regarding the requirements       hold the announcement of the award at a time
for the subject-matter of the procurement and the      that is earlier than that specified in the invitation
contracting authority considers this necessary,        and shall inform all tenderers simultaneously,
the contracting authority may use entirely, or a       directly, in writing about this and about the
portion of one or more proposed solutions in           relevant reason, and if appropriate about the new
defining the public procurement technical              earlier date for concluding the contract at least
specifications and the requirements of the             two days before the new date for the award
contract award.                                        announcement.

3. In cases pursuant to paragraph 2, subject to                              Title 6
the extent of the changes to the public
procurement technical specifications or to the                      Negotiated procedures
contract-award requirements, the contracting
authority may modify the assessment criteria                      Application of the procedure



                                                                                                        57
                                                            restricted or negotiated procedure with a
                    Article 124                             tender notice was unsuccessful under Article
                                                            115 (a), provided that the original terms of
1. Negotiated procedures may be initiated with              the invitation to tender and the tender
or without the publication of a tender notice.              specifications are not altered substantially,
                                                            and that a report to this effect is
2. Contracting authorities may award their                  communicated without delay by the
public procurements by negotiated procedure,                contracting authority, through the Public
with prior publication of a tender notice in the            Procurement Council, to the European
following cases:                                            Commission,

(a) if an open or a restricted procedure or the         (b) when, for technical or artistic reasons, or for
    competitive dialogue has been unsuccessful              reasons connected with the protection of
    pursuant to Article 92 (b) or (c), insofar as           exclusive rights, the services or products
    the original terms of the invitation, the               may be supplied only by a particular
    documentation and the descriptive document              organisation or person;
    are not substantially altered;
                                                        (c) insofar as is strictly necessary when, for
(b) in exceptional cases, for supply of goods, for          reasons of extreme urgency brought about
    works, and for services when the nature of              by events unforeseen by the contracting
    such or the relevant risks involved do not              authorities in question, the time limit laid
    permit prior overall (all inclusive) pricing;           down for the open, restricted or negotiated
                                                            procedures with the publication of a notice
(c) for public works, when the works involved               cannot be kept. However, the circumstances
    are required purely for the purpose of                  invoked to justify extreme urgency must not
    research, experiment or development, and                in any event be attributable to the
    not to establish commercial viability or                contracting authorities;
    recover research and development costs;
                                                        3. Further, contracting authorities may award
(d) for public services, when the nature of the         public works or public service contracts by
    services to be procured, in particular in the       negotiated procedure without a tender notice in
    case of intellectual services and services          the following cases:
    falling within category 6 of Annex 3, is such
    that contract specifications cannot be              (a) for additional works or services not included
    established with sufficient precision to                in the contract first concluded but which
    permit the award of the contract by selecting           have, through unforeseen circumstances,
    the best tender.                                        become necessary for the performance of the
                                                            public works or service described therein,
                    Article 125                             provided that such additional public works
                                                            or services cannot be technically or
1. The contracting authority may award                      economically separated from the main
contracts by negotiated procedure without prior             contract without great inconvenience to the
publication of a tender notice (in the following:           contracting authorities, or, when such public
“procedure without a tender notice”) in the cases           works services, although separable from the
specified in Article 124 (2) (a) if it invites to the       performance of the original contract, are
negotiation all tenderers in the open, the                  strictly necessary for its completion; on
restricted procedure, and in the competitive                condition that the total estimated value of
dialogue not subject to the provisions of Article           the contract(s) on such additional public
88 (1) (a)-(e).                                             works or service — awarded to the winner
                                                            of the former award procedures — shall not
2. Contracting authorities may conduct a                    exceed 50% of the value of the original
negotiated procedure without prior publication of           public works or service;
a tender notice in the following cases:
                                                        (b) for new public works or services consisting
(a) if the open or restricted procedure was                 in the repetition or similar works or services
    unsuccessful under Article 92 (a), or if the            entrusted to the party to which the same



58
    contracting authorities awarded an earlier       notice, where the contract concerned follows a
    contract, provided that such works or            design contest and must, under the rules
    services conform to a basic project for which    applying, be awarded to the successful candidate
    a first contract was awarded in an open or       or to one of the successful (awarded) candidates;
    restricted procedure, and the contracting        in the latter case, all candidates (tenderers)
    authority indicated in the tender notice for     recommended by the tender assessment panel
    the original procedure that the negotiated       shall be invited to participate in the negotiations.
    procedure might be adopted and took into
    consideration the total estimated cost of        6. Contracting authorities shall only award
    subsequent works or services (to determine       public service contracts by negotiated procedure
    whether it reaches the Community                 without prior publication of a tender notice in the
    threshold); such negotiated procedure may        cases stipulated in paragraph 2 (a) and paragraph
    be applied solely during the three years         4 (a), according to the rules applicable to such
    following the conclusion of the original         procedures.
    contract;
                                                         Common rules of negotiated procedures
4. In addition, contracting authorities may
award public supply contracts by negotiated                             Article 126
procedure without prior publication of a tender
notice in the following cases:                       The rules of the open procedures and in the case
                                                     of negotiated procedures with prior publication
(a) when      the   products     involved   are      of a tender notice, also the rules pertaining to
    manufactured purely for the purpose of           two-state procedures shall be applied to the
    research, experiment, study or development;      negotiated procedures mutatis mutandis, with the
    however, this provision does not extend to       differences stipulated in Title 6.
    quantity production to establish commercial
    viability or to recover research and                                Article 127
    development costs;
                                                     1. The shortest time limits set forth in this
(b) for additional deliveries by the winner of the   Chapter in respect to the receipt of tenders shall
    original contract which are intended either      not apply to negotiated procedures, however, the
    as a partial replacement of normal supplies      time limit set to submit tenders shall always be
    or as the extension of existing supplies         set allowing sufficient time for tenderers to
    where a change of supplier would oblige the      prepare – with equal opportunities – appropriate
    contracting authority to acquire material        tenders.
    having different technical characteristics
    which would result in incompatibility or         2. In negotiated procedures the commitment
    disproportionate technical difficulties in       period stipulated in Articles 76–78 in respect to
    operation and maintenance; however, the          tenderers and contracting authorities, while in the
    total length of such contract(s) may not         case of negotiated procedures with prior
    exceed three years;                              publication of a tender notice, the commitment
                                                     of the contracting authorities specified in
(c) when the product is listed on and procured       Articles 108 (1) and Article 121 (6) for the
    from a commodity exchange;                       tendering stage shall not apply. This, however,
                                                     shall not result in a divergence in the properties
(d) when the goods are procured with                 or conditions of the subject or the terms and
    exceptionally favourable terms in the course     conditions of the contract awarded in the
    of a sale in a liquidation procedure, in a       procedure from the original subject intended to
    closing sale or in the execution of a court      be purchased or the terms and conditions of the
    warrant, or in any similar procedure related     contract laid down at the commencement of the
    to the personal rights of the entity             award procedure [Article 35 (2)] to the extent
    concerned.                                       which would have not allowed the adoption of a
                                                     negotiated procedure. The conclusion of the
5. In addition, contracting authorities may          negotiations results in a commitment. When the
award public service contracts by negotiated         contracting authority has announced the results
procedure without prior publication of a tender      of the procedure, the contract shall be concluded



                                                                                                     59
in compliance with the stipulations of the           authority shall not modify its terms and
invitation, the tender specifications and the        conditions even according to Article 127 (2), and
contents of the tender at the time of the            the tenderers shall only submit tenders which are
conclusion of the negotiations.                      more advantageous to the contracting authority
                                                     compared to the tenders submitted in earlier
3. Tender bond may only be required in case of       rounds.
a failure to conclude the contract attributable to
the tenderer.                                        5. The contracting authority shall draw up
                                                     minutes for every negotiation that shall be signed
4. In justified cases the contracting authority      by all tenderers that participated in the stage in
may announce the results earlier than the date set   question not later than by the commencement of
in the invitation. The success or failure of the     the subsequent stage of the negotiation (in the
procedure – in the event of common negotiations      case of a single stage or the last stage not later
with several tenderers or negotiations with a        than two days after the negotiations ended), and
single tenderer – may be announced as early as       a copy of such minutes shall be handed over or
the conclusion of the last negotiation, and, in      dispatched to them within two working days.
appropriate cases, the new, earlier date of
concluding the contract may also be set. In other    Special rules of negotiated procedures with prior
respect, the contracting authority shall advise of             publication of a tender notice
the new date, the reason therefore, and – if
applicable – the earlier date of concluding the                          Article 129
contract all tenderers simultaneously, directly
and in writing at least two business days prior to   In addition to the details set forth in Article 120
the new date of announcement of the results.         (1), the invitation to tender for negotiated
                                                     procedures with prior publication of a tender
                   Article 128                       notice shall state the following:

1. The objective of negotiations between the         (a) the procedure and fundamental rules of the
contracting authority and one or more tenderers          negotiations set by the contracting authority;
in negotiated procedures is to award the contract
to the tenderer offering the most favourable         (b) the date of the first negotiation.
admissible terms and subject to the most
advantageous terms and conditions.                                       Article 130

2. In the course of the negotiations, the            1. In the case of negotiated procedures with
contracting authority shall ensure equal treatment   prior publication of a tender notice, the
of the tenderers, thus in particular, all            contracting authority may set the number or
information provided by the contracting              range of tenderers, provided that it sends an
authority shall be communicated to all tenderers.    invitation to tender to candidates at least
                                                     equalling the number or range set.
3. Negotiations with the tenderers may be
conducted jointly or subsequently, in one or         2. The range must number at least three
more rounds.                                         tenderers. The range of candidates invited to
                                                     tender shall be determined in the light of the
4. In the event of multi-round negotiations, the     nature of the subject of the contract and shall, in
contracting authority shall have the right to        any event, be sufficient to ensure genuine
continue negotiations only with tenderers having     competition.
submitted the most favourable tender in the first
or in the specified round. In this case, the         3. If the contracting authority prescribes the
contracting authority shall stipulate in the         number or range of participants, it shall be
invitation to tender the process of the multi-       indicated in the invitation to participate.
round negotiation and the upper limit of the
number of tenderers to be selected for the           4. In the invitation to participate the
subsequent rounds. In the course of the              contracting authority may identify the parties it
negotiations conducted with the tenderers            intends to invite. In addition to those identified,
selected in the above manner the contracting         any party may seek an invitation to take part in



60
the procedure in response to the invitation to        2. If several tenderers may submit a tender, the
participate, which are suitable for the               invitation to tender shall be sent simultaneously
performance of the contract. The contracting          to all tenderers.
authority shall state this possibility in the
invitation to participate.                            3. If Article 125 (2) (a) and (4) (a) applies to
                                                      the negotiated procedure, the contracting
5. If the contracting authority applies the           authority shall, if practicable, send an invitation
provisions set forth in paragraphs 1 and 4 jointly,   to tender to at least three tenderers.
it shall be obliged to prescribe a number or range
exceeding the number of those identified.                                Article 132

6. If the contracting authority prescribes a          On the commencement date of a negotiated
number or range, it shall also state in the           procedure without a tender notice, the
invitation to participate the method of ranking       contracting authority shall send – by fax,
suitable candidates to be applied if the number of    electronic media or directly – the invitation to
suitable candidates exceeds the number or range       tender, as well as a report on the name and
prescribed. For ranking, the technical capacity       address (seat, residence) of the entities (persons)
and the professional qualification of the             to be invited to tender and the circumstances
candidate to perform under the contract shall be      which justify the use of negotiated procedures to
taken into account.                                   the (chairperson of the) Arbitration Committee
                                                      of Public Procurements.
7. The contracting authority shall send an
invitation to tender to all the candidates selected                      Article 133
– based on their financial and economic
standing, technical capacity and the professional     1. The invitation to tender shall contain at least
qualification – directly, simultaneously, and in      the following:
writing, provided that this is allowed by the
number of candidates deemed suitable. If the          (a) name, address, telephone number and fax
contracting authority did not prescribe the               number (e-mail) of the contracting authority;
number or range of participants, it shall send an
invitation to tender to all suitable candidates.      (b) the ground to adopt the negotiated procedure
Candidates invited to tender shall not submit             under Article 125;
joint tenders.
                                                      (c) the method, the final date and the place for
8.52 Exclusively in the case of Article 124 (2) (a)       collecting the tender specifications as well
may the contracting authority start an electronic         as the terms of payment of any sum to be
auction, provided they have referred to this              paid for such documents, if the contracting
previously in the invitation to participate. The          authority has drawn up such documents but
detailed rules for the electronic auction shall be        did not send them concurrently with the
the subject of a separate act of legislation.             invitation to tender;

Special rules of negotiated procedures without a      (d) the subject and quantity of the contract
                  tender notice                           (nomenclature);

                   Article 131                        (e) specification of the contract to be awarded
                                                          through the negotiations;
1. With the exception of the case specified in
Article 135, negotiated procedures without a          (f) the term of the contract or the time limit for
tender notice shall commence by sending an                delivery;
invitation to tender.
                                                      (g) place of delivery;

                                                      (h) conditions for settling the price          and
                                                          reference to the applicable laws;
52
  This paragraph entered into force on 1 July
2006.


                                                                                                     61
(i) acceptance or prohibition            of   variant                      Article 134
    (alternative) offers;
                                                        1. Article 48 (2)–(3) shall apply with the
(j) evaluation criteria (Article 57);                   difference that the publication of the tender
                                                        notice shall mean the commencement of
(k) grounds for exclusion;                              negotiated procedures [Articles 35 (2) and
                                                        Article 131 (1)].
(l) suitability criteria and the stipulations in
    Article 69 (2);                                     2. The contracting authority may draw up
                                                        tender specifications. The contracting authority
(m) whether the correction of deficiencies is           shall ensure that the tender specifications remain
    permitted or not;                                   available from the commencement date of the
                                                        negotiated procedures up to the time limit to
(n) time limit to submit tenders;                       submit tenders. In the absence of tender
                                                        specifications, the terms of the contract and the
(o) address to which they must be sent;                 information set forth in Article 55 shall be
                                                        provided in the invitation to tender.
(p) language(s) in which they must be drawn up;
                                                        3. In a reasonable time before the expiry of the
(q) venue and date of tender opening;                   time limit to submit tenders, the tenderer may
                                                        request additional (interpretative) information
(r) identification of parties entitled to attend the    from the contracting authority or the authority
    tender opening;                                     designated thereby. The additional information
                                                        must be sent to the tenderer no later than two
(s) the process of negotiations and the related         business days prior to the expiry of the time limit
    fundamental rules prescribed by the                 to submit tenders.
    contracting authority;
                                                        4. In justified cases, the contracting authority
(t) the date of the first negotiation;                  may extend the time limit to submit tenders
                                                        indicated in the invitation to tender on one
(u) the date of announcing the results and the          occasion, provided that the modification of the
    planned date for the conclusion of the              time limit, together with the reason therefore, is
    contract;                                           communicated directly, simultaneously and in
                                                        writing, to all tenderers prior to the expiry of the
(v) the date of sending the invitation to tender.       original deadline.

2. The tender notice referred to in Article 50          5. The contracting authority shall have the
(3), Article 51 (3), Article 52, Article 53 (2) and     right to revoke the invitation to tender until the
(4)-(6), Article 54 (6) (a) and (c), Article 56 (1)     expiry of the time limit to submit tenders. This
and (4), Article 57 (5), Article 58 (1), Article 59,    shall be communicated directly, simultaneously
Article 60 (5)53, Article 61 (1)–(2), Article 62        and in writing, to all tenderers and the
(2), Article 65 (2), Article 69 (5), Article 70,        Arbitration Committee of Public Procurements
Article 71 (1) and (4)–(5), Article 79 (3), and in      prior to the expiry of the original deadline.
Articles 81, 83, 85, 88 to 91, 94 and 99 in respect
of open procedures (Title 3) shall mean an              6. In the case of a negotiated procedure without
invitation to tender.                                   a tender notice as defined in Article 125 (5) the
                                                        only assessment criterion applied to the tenders
3. The invitation to tender may also contain the        shall be the that of selection of the most
requirements and conditions that may be stated          advantageous tender [Article 57 (2) (b)].
in the tender specifications according to the rules
of open procedures [Article 51 (3), Article 57          7.54 Exclusively in the case of Article 125 (2)
(5), Article 58 (1), Article 79 (3)].                   may the contracting authority start an electronic
                                                        downwards revision of prices, provided they

53                                                      54
   This provision entered into force on 11                This paragraph entered into force on 1 July
January 2007.                                           2006.


62
have referred to this previously in the invitation
to participate. The detailed rules for the            2. In accelerated procedures the contracting
electronic downward revision of prices shall be       authority shall not set a time limit to submit
the subject of a separate act of legislation.         application to participate that is shorter than
                                                      fifteen days counted from the dispatch of the
                   Article 135                        notice containing the invitation to participate, or
                                                      that is shorter than ten days where the notice
1.55 In negotiated procedures without a tender        containing the invitation to participate is
notice under Article 125 (2) (c), negotiations        dispatched by electronic means, in a manner
shall be conducted and, contrary to the               defined by a separate act of legislation. In
provisions set out in Article 99 (2), a written       accelerated procedures the contracting authority
contract concluded with, the tenderer able to         shall not set a time limit to submit a tender in a
perform the contract within the period of time        restricted procedure that is shorter than ten days,
required by the extraordinary circumstances. In       counted from the day the invitation to tender is
such cases, the tenderer shall declare that the       dispatched.
grounds of exclusion do not apply to it,
furthermore, it shall attach the official             3.57 In accelerated procedures the candidates for
certifications related to the absence of public       participation shall issue a declaration that they
debts specified in Article 60 (1) (e) and Article     are not subject to reasons for exclusion, and shall
61 (2), and the authority certificates according to   send not later than fifteen days counted from the
Article 60 (1) (h) no later than within thirty days   announcement of the award according to Article
following the conclusion of the contract. The         117 (1), the authority certificates pursuant to
existence of the condition in point (g) of Article    Article 60 (1) (e), and Article 61 (2) regarding a
60 (1), in cases pertaining to the scope of Act       lack of public outstanding debt, and the authority
LXXV of 1996 on labour health and safety              certificates pursuant to Article 60 (1) (h). The
control, shall be controlled by the contracting       existence of the condition in point (g) of Article
authority according to the data published by the      60 (1), in cases pertaining to the scope of Act
labour safety authority56.                            LXXV of 1996 on labour health and safety
                                                      control, shall be controlled by the contracting
2. The Arbitration Committee of Public                authority according to the data published by the
Procurements shall be immediately notified – by       labour safety authority58.
fax or electronic media – of the commencement
of the procedure. Information shall be provided       4. In accelerated procedures, the invitation to
by applying, mutatis mutandis, the provisions set     tender shall be dispatched to the tenderers as
forth in Article 132 and Article 133 (1).             rapidly as possible and by the most appropriate
                                                      channels.
                     Title 7
                                                      5. The contracting authority shall ensure that
            Accelerated procedures                    the tender specifications remain available from
                                                      the date the invitation to tender is sent up to the
                   Article 136                        time limit to submit tenders. Provided they have
                                                      been requested in reasonable time, the tender
1. In the case of restricted procedures or            specifications must be sent to the tenderers by
negotiated procedures with prior publication of a     the contracting authorities or its designated
tender notice, the contracting authority may          organisation within two business days of
apply an accelerated procedure if the time limits     receiving their request.
[Article 107 (1), Article 122] laid down for such
procedures could not be otherwise kept. The           6. In reasonable time before the expiry of the
contracting authority shall describe in the notice    time limit to submit tenders, the tenderer may
starting the procedure the reasons for applying an    request additional (interpretative) information
accelerated procedure.                                from the contracting authority or the organisation

55                                                    57
   This clause entered into force on 24 August           This clause entered into force on 24 August
2006.                                                 2006.
56                                                    58
   This provision entered into force on 1 July           This provision entered into force on 1 July
2007.                                                 2007.


                                                                                                     63
designated thereby. The additional information        competition. Article 90 (2)-(4) shall not apply to
must be sent to the tenderer no later than four       the assessment of identical tenders. Where
days prior to the expiry of the time limit to         several tenders are identical regarding the limit
submit tenders.                                       of the highest number of tenderers that have
                                                      submitted most advantageous tenders, the
                    Title 7/A                         contracting authority shall conclude a framework
                                                      agreement with all such tenderers that have
       FRAMEWORK AGREEMENT                            submitted identical tenders.
            PROCEDURE
                                                      4. Where a framework agreement is concluded
          Two phases of the procedure                 with several tenderers the first phase of the
                                                      framework agreement procedure, in addition to
                  Article 136/A                       the provisions of Article 92, shall be
                                                      unsuccessful when the number of tenderers that
1. The framework agreement procedure is               submitted a valid tender is less than three. When
made up of two phases. During the first phase         the contracting authority provides an opportunity
the contracting authority (contracting authorities)   to tender for a part of the public procurement and
shall apply, in accordance with the provisions of     the number of tenderers successfully tendering
this Chapter, an open or a restricted procedure to    for that part is less than three, the procedure is
award a framework agreement. The contracting          unsuccessful considering the relevant part of the
authority may apply also a negotiated procedure       public procurement.
to award a framework agreement, where the
requirements according to Article 124 and             5. The framework agreement shall contain the
Article 125 exist for the application of the          substantial conditions for the contracts concluded
negotiated procedure. During the second phase         within the relevant period of time, in particular
the contracting authority asks for tenders for the    the subject-matter of and the consideration for
subject-matter specified in the framework             the public procurement. The quantity of the
agreement and awards a contract for the               public procurement shall be defined according to
implementation of the public procurement(s) in        Article 50 (2) in the framework agreement. The
question.                                             framework agreement may cover several public
                                                      procurement subjects.
2. A framework agreement may be concluded
with one, or with more than one tenderer. In the      6. The term of a framework agreement may not
latter case the number of tenderers that are          exceed four years. The term of the contract(s)
parties to the framework agreement shall not be       concluded on the basis of the framework
less than three, and where the contracting            agreement may not exceed the term of the
authority applies Article 136/B (3) (a), at the end   framework agreement.
of the first phase they shall set up an order of
preference for the tenderers on the basis of the      7. With the exception of the Annex according
award criteria used during the first phase.           to Article 73 (1), provided that these provisions
                                                      are not contrary to Article 96 (3), the framework
3. In the case a framework agreement is               agreement is public, the contents thereto shall be
concluded with several tenderers, in the notice       considered as data of public interest.
that starts the first phase of the framework
agreement procedure the contracting authority         8. Article 98 (1)-(3) shall be applied
shall state the limit of the highest and lowest       appropriately in the first phase of the framework
number of the tenderers that have submitted a         agreement procedure.
most advantageous tender according to one of
the award criteria set according to Article 57 (2),   9. The framework agreement procedure shall
and the contract authority shall conclude a           not be used with the aim to restrict competition.
framework agreement with not more that the
highest limit number of such tenderers. The                            Article 136/B
framework number shall be adjusted to the
subject-matter of the public procurement and to       1. Subsequent to the first phase of the
the specific characteristics of the procedure, and    framework agreement procedure the contracting
under all circumstances shall ensure genuine          authority may conclude during the second phase



64
of the procedure, several contracts within     the    (b) reference to the notice that started the first
limits of the quantities specified in          the        phase of the framework agreement
framework contract, as well as for some of     the        procedure, and the day of its publication;
relevant subjects of procurement (in           the
following: “relevant public procurement”).            (c) reference to the concluded framework
                                                          agreement;
2. Where a framework contract is concluded
with one tenderer according to Article 136/A, the     (d) the subject-matter, as well as the quantity of
contracting authority, with the aim to implement          the public procurement in question;
the public procurement in question, may
conclude a contract with the tenderer party to the    (e) a definition of the contract;
framework agreement, subsequent to a written
consultation.                                         (f) the term of the contract or the time limit for
                                                          implementation;
3. Where a framework agreement is concluded
with several tenderers according to Article           (g) the location of fulfillment;
136/A, the contracting authority, with the aim to
implement the public procurement in question          (h) the terms of payment, as well as reference to
                                                          the relevant law;
(a) may conclude a contract(s) by application of
    the terms laid down in the framework              (i) the time limit to submit a tender, the
    agreement without reopening competition,              language of the tender and the address to
    subsequent to a consultation in writing, on           submit the tender;
    the basis of the award criterion applied in
    the first phase concerning the relevant part      (j) the location and the time of the opening of
    of the public procurement, with the tenderer          the tender, who may be present at this;
    ranked in the first place, or where the
    tenderer ranked in the first place is unable to   (k) additional rules       for      conducting   the
    fulfill the contract with tenderer that               consultation;
    submitted the next most favourable tender,
    announced in the first phase of the contract      (l) the date for announcing the award, and the
    award, provided the framework agreement               planned date for the conclusion of the
    contains all terms of the contract aimed at           contract;
    implementing the public procurement in
    question;                                         (m) the date for the dispatch of the invitation to
                                                          consult.
(b) may dispatch directly in writing an
    invitation to tender to all tenderers that are    2. The shortest time for submitting a tender as
    parties to the framework agreement, where         laid down in this Chapter shall not apply in the
    the framework agreement does not contain          second phase of the framework agreement
    all terms of the contract aimed at                procedure, nevertheless a time limit shall be
    implementing the public procurement in            fixed which is sufficient to allow tenderers to
    question.                                         submit appropriate tenders under equal
                                                      opportunities.
                  Article 136/C
                                                      3. If appropriate, the contracting authority may
1. Where the framework agreement was                  invite tenderers in the invitation to consult to
concluded with only one tenderer according to         supplement their tender submitted during the
Article 136/B (2), or the contracting authority       first phase of the framework agreement
applies Article 136/B (3) (a), the invitation to      procedure.
participate in consultation shall contain at least
the following:                                        4. In the invitation to consult, in the tender, and
                                                      during the consultation there shall be no
(a) the name and address, the phone and fax           substantial amendments to the terms laid down in
    number (e-mail address) of tenderer;              the framework agreement. Tenderer shall submit
                                                      a tender identical to the terms set out in the



                                                                                                       65
framework agreement or a tender that is more           procedure or in the documentation which is a
favourable for the contracting authority,              part of the framework agreement. Where the
regarding the factors concerning the constituent       contract award criteria is the selection of the
elements of the framework agreement according          most economically advantageous tender, the
to Article 57 (3) (a).                                 provisions according to Article 57 (3)-(4) shall
                                                       be part of the invitation starting the procedure, of
5. The contracting authority shall publish by          the documentation, and of the framework
means of a notice, pursuant to a template              agreement.
specified in a separate act of legislation,
information on the success or unsuccessfulness         4. The contracting authority shall fix a time
of the second phase(es) of the procedure. This         limit for submitting tenders to allow sufficient
notice may be published together with the notice       time for submitting appropriate tenders.
on the contracts concluded with the aim to
implement public procurement contained in the          5. Tenders shall be submitted in writing, 136/C
framework agreement. In this latter case the           (3)-(4) shall also be applicable for the procedure.
notice shall be dispatched not more than five
working days after the end of the quartile of the      6.59 After the evaluation of the tenders according
calendar year concerning the contracts concluded       to Article 81 (4) the contracting authority may
on the basis of the framework agreement during         start an electronic downward revision of prices,
the preceding quartile of the year. A notice shall     where this has been indicated previously in the
not be published regarding the first, not complete     invitation to tender. The detailed rules for the
quartile of the year following the conclusion of       electronic downward revision of prices shall be
the framework agreement.                               the subject of a separate act of legislation.

                  Article 136/D

1. According to Article 136/A (3) (b) the                            Other rules applicable
invitation to tender shall be sent simultaneously
in writing to all tenderers that concluded a                             Article 136/E
framework agreement. No other tenderer shall be
involved in the procedure.                             1. The contracting authority is not obliged to
                                                       dispatch an invitation to consult or an invitation
2. In addition to the provisions in Article            to tender where, after the framework agreement
136/C (1) the invitation to tender shall include, at   is concluded, owing to a substantial circumstance
least, the following:                                  they could neither foresee nor overcome, it shall
                                                       not be possible for them to conclude the contract
(a) the method of receiving, the location and the      (contracts), or when the contract is concluded, to
    financial conditions of the receipt of the         implement them. In this case the contracting
    documentation where the contracting                authority shall inform without any delay in
    authority draws up documentation and has           writing the tenderers party to the framework
    not sent such simultaneously with the              agreement and the Public Procurement Council.
    invitation to tender;
                                                       2. In order to implement the public
(b) the contract award criteria and if the most        procurement the contracting authority may use
    economically advantageous tender is chosen         another procedure with the prior publication of
    the provisions in Article 57 (3);                  notice, than that provided in this Chapter,
                                                       particularly when the framework agreement has
(c) the possibility for providing missing              been concluded for a term of several years, as
    information, or the exclusion of such              well as when the number of tenderers that
    possibility.                                       concluded the framework agreement does not
                                                       allow genuine competition. In this case the
3. The contracting authority may apply                 contracting authority, in a new notice, shall refer
contract award criteria that differ from the           to this circumstance and shall inform in writing,
criteria used in the first phase of the procedure
where in the first phase they have specified           59
                                                         This paragraph entered into force on 1 July
thereto in the invitation to tender that started the   2006.


66
without any delay after the publication of this      1. In the tender notice,          the   contracting
new notice the tenderers that concluded the          authority shall be entitled to:
framework agreement simultaneously.
                                                     (a) either require the tenderer winning the
                        Title 8                          public works concession (hereinafter
                                                         referred to as ‘concessionnaire’) to award
      Special rules pertaining to public works           contracts representing a minimum of thirty
                     concession                          percent of the total value of the work for
                                                         which the concession contract is to be
     Procedure of the contracting authority in the       awarded, to third parties,
          event of public works concessions
                                                     (b) or request the tenderer to specify in their
                     Article 137                         tenders the percentage of the total value of
                                                         the work for which the concession contract
In respect of public works concession, the rules         is to be awarded which they intend to assign
set forth in Chapter IV shall apply with the             to third parties.
deviations provided for in this Title 8.
                                                     2. Tenderers may increase the percentage
                     Article 138                     specified in paragraph 1 (a) in their tender.
                                                     Based on the tender submitted by the
1.                                                   concessionnaire, this minimum percentage shall
                                                     be specified in the concession contract.
2. The tender notice on launching the
procedure shall be drawn up by the contracting       3. For the purposes of paragraph 1 and Articles
authority according to the template provided for     143 and 144, the following shall not be regarded
in the relevant legislation and published.           as third parties:

3. The contracting authority shall prepare a         (a) undertakings having submitted a joint
notice on the success or the failure of the              tender;
procedure in compliance with a template
presented in the relevant legislation and publish    (b) undertakings over which the tenderer may
this notice in the Public Procurement Bulletin.          exercise, directly or indirectly, a dominant
The notice may also be published in accordance           influence, or which may exercise, directly or
with Article 44 (1).                                     indirectly, a dominant influence over the
                                                         tenderer or the tenderer and another
                     Article 139                         organisation.

1. In the tender notice that starts the procedure    4. A list of the organisations referred to in
the contracting authority shall indicate the type    paragraph 3 (b) shall be indicated in the tender
of award procedure to be followed. In respect of     and this list shall be brought up to date following
the preparation of the notice the rules pertaining   any subsequent changes.
to tender notice or to invitation to participate
shall be applied accordingly. An accelerated         5. The contracting authority shall not stipulate
procedure shall not be applied.                      in the tender notice launching the procedure that
                                                     tenderers must name the subcontractors intended
2. Negotiated procedure with the prior               to be employed for more than 10% of the
publication of a tender notice can also be           contract value.
adopted in cases not covered by Article 124 (2).
The contracting authority may only adopt a                              Article 141
negotiated procedure without a notice in
compliance with the provisions set forth in          In respect of public works concessions,
Article 125 (1), (2) (a), (b) or (3) (a).
                                                     (a) the evaluation criterion may be only the
                     Article 140                         selection of the best-value-for-money tender
                                                         [Article 57 (2) (b)];




                                                                                                     67
(b) in open procedures the time limit for receipt     shall not exceed one half of the value of the
    of tenders, while in restricted procedures and    original works.
    negotiated procedures with a prior
    publication of a tender notice the requests to    Procedure to be followed by the concessionnaire
    participate, may be not less than fifty-two          in the event of contracts with third parties
    days from the date of dispatch of the tender
    notice, furthermore, neither Article 74 (2)                          Article 143
    nor Article 122 (2) may be applied. The time
    limit fixed for receipt of tenders (in an open    If the value of the public works reaches or
    procedure) or for receipt of requests for         exceeds      the     Community         threshold,
    participation may be shortened by seven           concessionnaires qualifying as a public authority
    days where the contracting authority              pursuant to Article 22 (1), shall proceed in
    dispatched for publication the notice starting    compliance with the provisions of this Chapter
    the procedure by electronic means,                when concluding a public works contract with a
    according to a separate act of legislation.       third party.

                   Article 142                                           Article 144

If the public works concession also fall under the    1. If the value of the public works reaches or
scope of Act XVI of 1991 (hereinafter referred to     exceeds       the       Community        threshold,
as ‘Act on concessions’) instead of inviting a        concessionnaires not qualifying as a public
concession tender, the contracting authority shall    authority pursuant to Article 22 (1) shall proceed
proceed in compliance with Article 137 and shall      in compliance with this Chapter – subject to the
also appropriately apply the provisions of Act on     differences set forth in paragraphs 2 to 7 below –
concessions — with the exception of Article 2         when concluding a public works contract with a
(1) (a), Article 4, Article 8 (1) and Article 9. In   third party.
respect of the preparation of the written summary
pursuant to Article 93 (2) herein Article 9/A of      2.
the Act on concessions shall also be
appropriately applied.                                3. The concessionnaire shall draw up the
                                                      tender notice on launching the procedure
                  Article 142/A                       according to the template provided for in the
                                                      relevant legislation and publish it, unless a
1. When additional construction works is              negotiated procedure without a tender notice
necessary for the fulfillment of the works            according to Article 125 is adopted.
specified in the contract concluded earlier, the
contracting authority may conclude with the           4. The concessionnaire shall prepare a notice
concessionaire a relevant contract without            on the success or the failure of the procedure in
conducting a new public procurement procedure,        compliance with a template provided in the
provided                                              relevant legislation and publish this notice in the
                                                      Public Procurement Bulletin. The notice may
(a) the additional construction works, owing to       also be published in accordance with Article 44
    technical or economic reasons, cannot be          (1).
    separated from the earlier contract without
    causing substantial difficulties for the          5. In the tender notice on launching the
    contracting authority, or                         procedure the concessionaire shall specify the
                                                      type of procedure adopted. The notice shall be
(b) the additional construction works may be          drawn up accordingly, pursuant to the
    separated, but these are indispensable for the    regulations pertaining to the tender notice or
    fulfillment of the works in question.             invitation to participate.

2. The aggregated value of the contract or            6. A negotiated procedure with a tender notice
contracts   concluded    with   the   earlier         may also be adopted in cases not falling within
concessionaire, forecast for the additional           the scope of Article 124 (2). A negotiated
construction works according to paragraph 1           procedure without a tender notice can be adapted
                                                      according to Article 125.



68
                                                       2. The contracting authority may also send
7. With the exception of negotiated procedures,        invitations to tender in writing for the
the time limit for the receipt of tenders shall not    tenderer(s),
be fixed at less than forty days counted from the
date of the dispatch of the tender notice, or of the   (a) if the procedure launched according to
invitation to tender. The time limit (in open              paragraph 1 was unsuccessful;
procedures) that is not less than forty days for
submitting as tender, and thirty-seven days for        (b) when, for technical or artistic reasons or for
submitting a request for participation may be              reasons connected with the protection of
shortened by not more than seven days, provided            exclusive rights, the works may only be
the contracting authority dispatched the notice            carried out by a particular organisation or
for the invitation to participate using electronic         person;
means, in a manner specified by a separate act of
legislation. Article 74 (4) and Article 122 (3)        (c) for additional services not included in the
shall apply. Article 74 (2), Article 122 (2), and          contract first concluded but which have,
Article 136 (2) shall not apply.                           through unforeseen circumstances, become
                                                           necessary for the performance of the public
                      Title 9                              service described therein, provided that such
                                                           additional public services cannot be
              Simplified procedure                         technically or economically separated from
                                                           the    main      contract     without   great
                   Article 145                             inconvenience to the contracting authorities,
                                                           or, when such public services, although
1. When contracting for services specified in              separable from the performance of the
Annex 4 (Article 21 (3)) the contracting                   original contract, are strictly necessary for
authority may adopt the simplified procedure set           its completion; on condition that the total
forth in Articles 146–152 below.                           estimated value of the contract(s) on such
                                                           additional public works or service – awarded
2. In case of legal services defined in Article            to the winner of the former award
153 the contracting authority may also proceed             procedures – shall not exceed 50% of the
as set out therein.                                        value of the original public service;

                   Article 146                         (d) for new public services consisting in
                                                           identical or similar services entrusted to the
Simplified procedures are single-stage negotiated          party to which the same contracting
or non–negotiated procedures. In the event of              authorities awarded an earlier contract,
non-negotiated procedures, the contracting                 provided that the new services conform to a
authority shall be bound by the conditions set             basic project for which a first contract was
forth in the invitation to tender and the tender           awarded in the procedure specified in
specifications, while tenderers shall be bound by          paragraph 1, and the contracting authority
their tenders.                                             indicated in the tender notice for the original
                                                           procedure that the procedure specified in
                   Article 147                             paragraph 2 might be adopted and took into
                                                           consideration the total estimated cost of
1. In simplified procedures, the tender notice             subsequent services (to determine whether it
on launching the procedure shall be drawn up by            reaches the Community threshold); however,
the contracting authority according to the                 such procedure may be applied solely during
template provided for in the relevant legislation          the three years following the conclusion of
and published in the Public Procurement                    the original contract.
Bulletin, unless provided otherwise in
paragraphs 2 and 560.                                  (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
60
   This provision entered into force on 11                 market prices the consideration is much
January 2007.                                              lower, and that the use of such favourable



                                                                                                      69
     terms would not be possible when paragraph        submitted by the appropriate application of the
     1 is applied.                                     provisions in paragraph 1 above and Article 150.

3. If the case set forth in paragraph 2 (a)                               Article 149
applies, the contracting authority shall send
invitations to tender to at least three tenderers if   1. In the tender notice or invitation to tender,
possible. In such a case, the invitations to tender    respectively, the contracting authority shall
shall be sent simultaneously.                          indicate whether the procedure includes
                                                       negotiations or it intends to assess the submitted
4. In the case set forth in paragraph 2 (e) the        tenders without holding negotiations.
contracting authority shall send without any
delay after having gained information about the        2. In the tender notice the contracting authority
favourable terms, an invitation to tender by fax       may identify the parties it intends to invite to
or by electronic means to the tenderer that            tender. In addition to those identified, any parties
offered such favourable terms and to at least two      may submit a tender in response to the invitation
other tenderers known, if possible. The                to tender, which are suitable for the performance
contracting authority shall keep the document          of the contract. The contracting authority shall
containing the favourable terms offered                state this possibility in the tender notice.
according to Article 7 (2).
                                                                          Article 150
5. Insofar as is strictly necessary, for reasons of
extreme urgency brought about by events                The invitation to tender shall contain at least the
unforeseen by the contracting authorities in           following:
question, the time limit laid down for the
procedure specified in paragraph 1 cannot be           (a) name, address, telephone number and fax
kept, the contracting authority shall hold                 number (e-mail) of the contracting authority;
negotiations and, contrary to the provisions set
forth in Article 99 (2), execute a written contract    (b)
upon the conclusion of such negotiations, with
the tenderer that is able to perform the within the    (c) the method, the final date and the place for
time limit required by the extraordinary                   collecting the tender specifications as well
circumstances. However, the circumstances                  as the terms of payment of any sum to be
invoked to justify extreme urgency must not in             paid for such documents, if the contracting
any event be attributable to the contracting               authority has drawn up such documents but
authorities.                                               did not send them concurrently with the
                                                           invitation to tender;
                   Article 148
                                                       (d) the subject and quantity of the contract
1. On the commencement date of the procedure               (nomenclature);
under Article 147 (2), the invitation to tender, as
well as a report on the name and address (seat,        (e) specification of the contract;
residence) of the organisations (persons) to be
invited to tender and the circumstances which          (f) the term of the contract or the time limit for
justify the use of negotiated procedures shall be          performance;
submitted – by fax or electronic media as well,
or directly – to the Arbitration Committee of          (g) place of performance;
Public Procurements.
                                                       (h) conditions for settling the price           and
2. The Arbitration Committee of Public                     reference to the applicable laws;
Procurements shall be informed of the
commencement of the procedure specified in             (i) whether variant offers are permitted or not;
Article 147 (5)61 without delay by fax or
electronic media. The information shall be             (j) the evaluation criteria (Article 57);

61
   This provision entered into force on 11             (k) grounds for exclusion, if several tenderers
January 2007.                                              may submit a tender;



70
                                                       shall be applied as appropriate, provided,
(l) suitability criteria and the stipulations in       however, that in the cases specified in Article 63
    Article 69 (2);                                    (2) (c) and (d) a simple statement may also be
                                                       accepted.
(m) whether the correction of deficiencies is
    allowed or prohibited;                             4. With regard to the suitability of the tenderer
                                                       and its subcontractor intended to be employed
(n) time limit to submit tenders;                      for the performance of more than 10% of the
                                                       contract, the provisions stipulated in Articles 65–
(o) address to which they must be sent;                66, 67 (3), 68–69 and 71 (4) shall apply as
                                                       appropriate, provided that the contracting
(p) language(s) in which they must be drawn up;        authority may prescribe other objectively defined
                                                       suitability criteria and methods of certification,
(q) venue and date of tender opening;                  nevertheless, the provisions of Article 69 (3)
                                                       shall be applied as appropriate.
(r) identification of parties entitled to attend the
    tender opening;                                    5. In respect of the extension of the time limit
                                                       fixed for receiving the tenders in the tender
(s) the process of negotiations and the related        notice, and revoking the tender notice, the
    fundamental rules prescribed by the                provisions of Article 75 (1) and Article 76 (2),
    contracting authority, as well as the date of      while in respect of the extension of the time limit
    the first negotiation, unless a non-negotiated     specified to submit tenders specified in the
    procedure is adopted;                              tender invitation, and revoking the tender
                                                       invitation the provisions of Article 134 (4)–(5)
(t) the date of announcing the results and the         shall be applied as appropriate.
    planned date of concluding the contract;
                                                       6. In the event of non-negotiated procedures,
(u) the date of sending the invitation to tender.      the provisions of Articles 76 (1) and 77–78 shall
                                                       be applied as appropriate to the validity of the
                   Article 151                         tenders, provided that if the procedure was
                                                       launched through a tender notice, instead of the
1. If the contracting authority chooses to draw        publication of a notice, all tenderer shall be
up tender specifications, it shall ensure that such    advised in writing directly and simultaneously.
documents remain available from the publication
of the tender notice or from sending the               7. Upon completing the evaluation of the
invitation to tender, up to the time limit to submit   tenders, the contracting authority shall prepare a
tenders, and shall also apply the provisions of        written summary of the tenders following the
Article 54 (2) and (4)–(6) as appropriate.             template provided for in the relevant legislation.
                                                       Upon request, the summary shall be forwarded to
2. In order to submit a suitable tender, the           the Council for Public Procurement.
tenderer may request in writing (or by electronic
media) from the contracting authority or the           8. The sending and publication of the notice
authority     designated    thereby     additional     regarding the success or the failure of the
(interpretative) information concerning the            procedure shall be governed by the provisions of
tender notice or the invitation to tender,             Article 98. In the notice referred to in Article 98
respectively, and the tender specifications in         (3) the contracting authority shall state whether it
reasonable time prior to the expiry of the time        agrees to the publication of the notice; in the
limit to submit tenders. The additional                absence of this agreement the notice shall not be
information must be supplied to the tenderer not       published.
later than two working days prior to the expiry of
the time limit to submit tenders. In addition, the     9. In the course of a simplified procedure, the
provisions of Article 56 (3)–(4) shall be applied      provisions stipulated in Article 48 (2)–(3),
as appropriate.                                        Article 49–53, Article 57 (1)–(5), Article 58,
                                                       Article 59, Article 70, Article 73, Article 74 (6),
3. In respect of the exclusion criteria, the           Article 75 (2), Articles 79–89, Article 90 (2)-
provisions set forth in Articles 60–63 and 71 (3)



                                                                                                       71
(4)62, Articles 91–92, Article 93 (1), Article 94–     publication according to Article 44 (1) within
97 and Article 99 shall be applied as appropriate,     five working days from the conclusion of the
however, the tender notice shall be construed as       contract. In the notice the contracting authority
a notice launching the procedure or invitation to      shall state whether it agrees to the publication of
tender. Article 90 (2) may be applicable if it was     the notice; in the absence of this agreement the
referred to by the contracting authority in the        notice shall not be published. However, this
tender notice or the invitation to tender.             statement shall not affect the publication in the
                                                       Public Procurement Bulleting according to
                   Article 152                         Article 47 (1).

1. In the event of simplified negotiated               3. The conclusion of a contract according to
procedures, the provisions of Articles 127 (2)–        paragraph 1 shall not affect the application of
(4) and 128 shall also be appropriately applied.       Articles 1, 5 and 16 as appropriate.
Negotiations, however, shall not result in a
divergence in the properties or conditions of the                            Title 10
subject and the terms of the contract awarded in
the procedure from the original article intended              Rules concerning design contests
to be purchased and the contractual terms laid
down at the commencement of the award                                      Article 154
procedure [Article 35 (2)] to the extent which
would have not allowed the adoption of a               1. Upon organising a design contest, the
simplified procedure.                                  contracting authority (for the purposes of this
                                                       Title, hereinafter referred to as ‘organiser’) shall
2.63 In the case specified in Article 147 (5), the     act in compliance with this Title 10.
tenderer shall make a written statement declaring
that it is not subject to the exclusion criteria and   2. The detailed rules of design contests are set
shall attach the official certificates on the          forth in the relevant legislation. Instances where
absence of public debts as specified in Articles       the adoption of a design contest is mandatory
60 (1) (e) and 61 (2) not later than within thirty     may be determined in the relevant legislation.
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                            Article 155
authority according to the data published by the
labour safety authority64.                             1. The design contest may take place in the
                                                       form of an open or restricted procedure.
                   Article 153
                                                       2. In the event of an open design contest, all
1. The contracting authority does not need to          those interested may submit a tender (project).
adopt a public procurement award procedure
when ordering the activity defined in Article 5        3.   In the event of a restricted design contest
(1)-(2) of Act XI of 1998 on Legal Practitioners
as a service.                                          (a) the organiser shall have the right to set the
                                                           number or the range of tenderers by sending
2. The contracting authority shall draw up the             invitations to tender to a number of
notice on the conclusion of the contract                   candidates falling within the upper limit of
according to the template provided for in the              the range, or
relevant legislation. The notice shall be sent for
                                                       (b) all those interested – except for those
62
   This provision entered into force on 11                 identified by the organiser – may submit an
January 2007.                                              application to participate.
63
   This clause entered into force on 24 August
2006.                                                                      Article 156
64
   This provision entered into force on 1 July
2007.


72
1. In the case of restricted design contests, the       perform under the contract shall be taken into
number or range of tenderers may not be less            account.
than three. The range (number) of candidates
invited to tender shall be determined in the light      4. In the invitation to the design contest, the
of the magnitude, complexity and conditions of          organiser shall specify the assessment criteria of
the task shall, in any event, be sufficient to          the tenders.
ensure genuine competition.
                                                                            Article 158
2. If the organiser applies the provisions of
Article 155 (3) (a) and (b) collectively, it shall be   1. Tenders shall be evaluated by an assessment
obliged to prescribe a number or range exceeding        panel (evaluation committee).
the number of those identified.
                                                        2. The evaluation committee shall be
3. The organiser shall send an invitation to            composed exclusively of natural persons who are
tender to all the candidates selected – based on        independent of participants in the contest.
the suitability criteria – up to the upper limit of
the range specified, directly, simultaneously, and      3. Where the organiser sets particular
in writing, provided that this is allowed by the        professional requirements or qualifications for
number of candidates deemed suitable. If the            the participants (candidates) in a contest, at least
contracting authority did not prescribe the             two thirds of the members of the evaluation
number or range of participants, it shall send an       committee must meet the same requirements and
invitation to tender to all suitable candidates.        qualifications, respectively, or the equivalent
                                                        thereof.
4. The party inviting the tender shall be
prohibited to define the suitability criteria in such   4. The evaluation committee shall evaluate the
a way that results in the elimination of certain        projects submitted anonymously autonomously,
candidates (tenderers) or in their unjustified          in an unbiased and professional manner, on the
negative or positive discrimination in any other        grounds of the evaluation criteria.
manner.
                                                                            Article 159
                    Article 157
                                                        1. The contracting authority shall publish,
1. Design contests shall be launched by way of          according to a template set forth in a separate act
an invitation to the design contest which shall be      of legislation, a notice on the success or the
published in the form of a notice by the                unsuccessfulness of the design contest
organiser. The notice shall be drawn up in              procedure. This notice shall be dispatched in not
accordance with the template provided in the            more than five days counted from the date of the
relevant legislation.                                   contract award or from the time limit fixed for
                                                        the contract award.
2. If the organiser has identified the candidates
or prescribed the number or range of candidates         2. The notice according to paragraph 1 shall
[Article 155 (3)] this shall be stated in the           not contain information that shall prevent legal
invitation. Upon applying the provisions in             redress that is contrary to the public interest, that
Article 155 (3) (b) the invitation to the design        infringes the business interests of an economic
contest shall also refer to the possibility that in     operator, that infringes fair competition among
addition to those identified, any party may seek        service providers.
an invitation to take part in the procedure.
                                                                            Article 160
3. If the organiser prescribes a number or
range, it shall also state in the invitation to the     1. The sending and publication of the notices
design contest the method of ranking suitable           shall be governed by the provisions of Articles
candidates to be applied if the number of suitable      44–47 as appropriate.
candidates exceeds the number or range
prescribed. For ranking, the technical capacity         2. In the course of a design contest the
and professional qualification of the candidate to      provisions of Articles 1 and 6-7, Article 10 (7)-
                                                        (8), Articles 15-16, Article 20 (1), Article 29 (1),



                                                                                                         73
Article 35, Article 61 (3), and Article 98 (4) shall
also be applied as appropriate.                         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
                   CHAPTER V                            authority and also with other activities not under
                                                        the provisions of Chapter V, and it cannot be
     SPECIAL CONTRACT AWARD                             established for the provision of which activity
      PROCEDURE FOR ENTITIES                            the public procurement is required, or the subject
  OPERATING IN THE WATER, ENERGY,                       of the public procurement cannot be divided by
            TRANSPORT                                   its nature, or in the event of dividing it into parts,
   AND POSTAL SERVICES SECTORS                          it cannot be used properly.

                      Title 11                          5. For services specified in Annex 4 the
                                                        simplified procedure (Title 19) may be adopted.
     The scope of application of this Chapter           This procedure shall not be adopted for services
                                                        specified in Annex 3. However, in the case of
                General provisions                      public procurements which have as their subject
                                                        a service which includes both a service specified
                    Article 161                         in Annex 3 and a service specified in Annex 4, a
                                                        simplified procedure may be adopted, provided
1. Entities (contracting authorities) specified in      that the value of the service specified in Annex 4
Article 162 shall act in accordance with this           exceeds the value of the service specified in
Chapter where                                           Annex 3 at the beginning of the contract award
                                                        procedure.
(a) the value of their public procurement
    covering a given subject equals or exceeds                        Contracting authorities
    the Community thresholds at the beginning
    of the contract award procedure;                                        Article 162

(b) they conduct a design contest procedure             1. For the purposes of this Chapter, the
    (Title 20) whose value according to Article         following entities shall be considered contracting
    177 equals or exceeds the Community                 authorities if they pursue any of the activities
    thresholds at the beginning of the procedure.       specified in Article 163:

2. This Chapter shall apply, when the subject           (a) contracting authorities       specified    under
of the public procurement is in connection with             Article 22 (1);
one or more activities – specified in Article 163
– of the contracting authority and also with other      (b) economic operators (Article 685 (c) of the
activities, but the subject of the public                   Civil Code), over which one or more entities
procurement is required primarily for providing             specified in point (a) above can exercise,
activities specified in Article 163.                        either directly or indirectly, a dominant
                                                            influence.
3. Chapter IV shall apply, when the subject of
the public procurement is in connection with one        2. For the purposes of this Chapter, entities not
or more activities – specified in Article 163 – of      classified under paragraph 1 but having special
the contracting authority and also with other           or exclusive right (Article 166) to pursue any or
activities, and it cannot be established for the        a combination of the activities specified in
provision of which activity the public                  Article 163 shall also be deemed contracting
procurement is required primarily, or the subject       authorities.
of the public procurement cannot be divided by
its nature, or in the event of dividing it into parts                       Article 163
it cannot be used properly, provided that the
contracting authority is regarded as a contracting      1. The following activities — excluding those
authority in accordance with Article 162 (1) (a)        specified in Articles 164–165 — shall fall within
as well.                                                the scope of this chapter:



74
                                                           preceding three years, including the current
(a) the provision or operation of fixed networks           year;
    intended to provide a service to the public in
    connection with the production, transport or       (b) in the case of gas or heat, the production of
    distribution of: drinking water, electricity;          gas or heat by the authority concerned is the
    gas or heat; or the supply of drinking water,          unavoidable consequence of pursuing an
    electricity, gas or heat to such networks;             activity other than that referred to in Article
                                                           163 (1), and supply to the network is aimed
(b) the exploitation of a specific geographical            only at the economic exploitation of such
    area for the purpose of:                               production and amounts to not more than
                                                           twenty percent of the authority's turnover
    (ba) exploring for or extracting (mining) oil,         having regard to the average for the
         gas, coal or other solid fuels, or                preceding three years, including the current
                                                           year.
    (bb) the provision of airport, maritime or
         inland port or other terminal facilities to                       Article 165
         carriers by air, sea or inland waterway,
         or passenger transport;                       The provision of bus transport services to the
                                                       public shall not be considered to be an activity
(c) the provision or operation of networks             within the meaning of Article 163 (1) (c) where
    providing a service to the public in the field     other entities are free to provide those services,
    of transport by railway, automatic systems,        either in general or in a particular geographical
    tram, trolley bus, bus or cable car.               area, under the same condition as the contracting
                                                       authority.
d) the provision of postal services or other
   services than postal services on condition                              Article 166
   that the latter is provided by an undertaking
   which provides postal services as well.             For the purposes of Article 162 (2) special or
                                                       exclusive rights mean rights based on legislation,
2. For the purposes of paragraph 1 (c), a              or granted by a competent authority by way of
network shall be considered to exist where the         regulatory or administrative provision, and on
service is provided under specific (operating)         the basis of which one or only a limited number
conditions laid down by a competent authority,         of entities can be authorised to carry out an
thus, in particular, conditions on the routes to be    activity defined in Article 163, and which
served, the capacity to be made available or the       substantially affects the ability of other entities to
frequency of the service.                              carry out such activities.

                   Article 164                                 Subject of the public procurement

The supply of drinking water, electricity, gas or                          Article 167
heat to networks operated by a contracting
authority specified in Article 162 (1) (b) or          1. Subjects of public procurements may be the
paragraph 2 shall not be considered as an activity     following: public supply, public works or public
within the meaning of Article 163 (1) (a) where:       services, except for works concessions (Article
                                                       26) and service concessions [Article 242 (4)].
(a) in the case of drinking water or electricity,
    the production of drinking water or                2. With regard to public supply contracts
    electricity by the authority concerned takes       Article 24, to public works Article 25 (1), while
    place because its consumption is necessary         to public services the provisions set forth in
    for pursuing an activity other than that           Article 27 shall be applied. Article 28 shall also
    referred to in Article 163 (1), and supply to      be applicable.
    the network depends only on the authority’s
    own consumption and has not exceeded                                    Exceptions
    thirty percent of the authority’s total
    production of drinking water or energy,                                Article 168
    having regard to the average for the



                                                                                                         75
1. The procedure set forth in this Chapter shall           contracting authority conducting an activity
not apply to contracts or design contests which            related to energy, gas or heat as specified in
                                                           Article 163 (1) (a), or a contracting authority
(a) are directly not related to the pursuit of the         conducting an activity specified in Article
    activities of the contracting authority                163 (1) (ba).
    specified in Article 163, or
                                                                          Article 170
(b) are related to an activity as specified in
    Article 163, pursued by the contracting           The procedure set forth in this Chapter shall not
    authority in a non-member country, under          apply to contracting authorities pursuing an
    conditions not involving the physical use of      activity specified in Article 163, if, pursuant to
    a network or geographical area within the         Article 30 of the Directive 17/2004/EC, the
    European Community.                               European Commission establishes that the given
                                                      activity is directly exposed to competition and
2. However, this Chapter shall apply to               has made a decision to that effect. The procedure
contracts or design contests awarded or               set forth in Articles 175/A to 175/C shall be
organized by a contracting authority conducting       applied to establish whether the given activity is
an activity related to drinking water as specified    directly exposed to competition.
in Article 163 (1) (a), and which
                                                                          Article 171
(a) are connected with hydraulic engineering
    projects, irrigation or land drainage,                                Article 172
    provided that the volume of water intended
    for the supply of drinking water represents       1. The procedure set forth in this Chapter shall
    more than twenty percent of the total volume      not apply to public supply contracts awarded for
    of water made available by these projects or      purposes of resale or hire to third parties,
    irrigation or drainage installations, or          provided that the contracting authority enjoys no
                                                      special or exclusive right to sell or hire the
(b) are connected with the disposal or treatment      subject of such contracts and other undertakings
    of sewage.                                        may obtain such rights subject to the same terms
                                                      and conditions as the contracting authority.
3. The contracting authority shall notify –
through the Public Procurement Council – to the       2. The contracting authority shall notify –
European Commission, at the request thereof, the      through the Public Procurement Council – to the
information regarding the activities specified in     European Commission, at the request thereof, the
paragraph 1 as exceptions.                            groups of goods and activities specified in
                                                      paragraph 1 as exceptions.
4. The subject of the public procurement shall
be deemed to be in direct relation with the                               Article 173
activity specified in Article 163, pursued by the
contracting authority, if the activity could not be   1. The procedure set forth in this Chapter shall
pursued without the subject of the public             not be applied
procurement.
                                                      a)   when the contracting authority awards the
                   Article 169                             service contract to an undertaking, in
                                                           relation with which it is under the obligation
The procedure set forth in this Chapter shall not          to prepare an annual consolidated report in
apply to:                                                  accordance with the Act on Financial
                                                           Reporting, or which the contracting
(a) contracts for the supply of water awarded by           authority may control, or which may control
    a contracting authority conducting an                  the contracting authority directly or
    activity related to drinking water as                  indirectly, or to another entity which is
    specified in Article 163 (1) (a);                      directly or indirectly controlled by the same
                                                           undertaking as the contracting authority, or
(b) contracts for the supply of energy or of fuels
    for the production of energy awarded by a



76
b) when the service contract as awarded by a
   joint venture formed by a number of                5. The contracting authority shall communicate –
   contracting authorities for the sole purpose       through the Council for Public Procurement – to
   of carrying out an activity within the             the European Commission, at request, regarding
   meaning of Article 163, to an undertaking          the application of paragraphs (1)-(4), the names
   which has a relationship specified in point        of the undertakings concerned, the nature and
   (a) above with any of the contracting              value of the contracts involved, and any such
   authorities involved, provided that at least       conditions or proof which may be deemed
   eighty percent of the average turnover of the      necessary by the European Commission to
   undertaking defined in points (a) and (b)          establish if the relationship between the
   with respect to public supply or services or       contracting    parties    complies    with   the
   public works within the European Union for         requirements of this Article.
   the preceding three years derives from
   economic activities conducted with the                                Article 174
   entities with which it has a relationship
   defined in point (a) above.                        Furthermore, this Chapter shall not apply to the
                                                      following services:
2. When because of the date on which the
undertaking, within the meaning of paragraph 1,       (a) contracts for the acquisition of existing
concluding the contract with the contracting              buildings or other immovable property or
authority, was created or commenced activities,           concerning rights thereon; except financial
the turnover is not available for the preceding           service contracts concluded (in whatever
three years, it will be sufficient for that               form) in connection with such contracts;
undertaking to show that the turnover referred to
in paragraph 1 is credible, particularly by means     (b) financial services as defined in category 6 of
of business projections.                                  Annex III, in connection with the issue, sale,
                                                          purchase or transfer of securities or other
3. When more than one undertaking, which are              financial instruments or which aim to raise
in a relationship with the contracting authority as       money or capital in order to realise the
specified in paragraph 1 (a), provides the same or        monetary, the exchange rate or the reserve
similar services, supplies or works for the               management policy, or the debt management
contracting authority, the total turnover deriving        policy of the central government;
from the provision of services, supplies or works
by these undertakings shall be taken into             (c)
account.
                                                      (d) contracts for arbitration, mediation and
4. Furthermore, the procedure set forth in this           conciliation services;
Chapter shall not apply
                                                      (e) employment contracts, public service
(a) when the service contract is awarded by a             relationship, legal status of public servants,
    joint venture formed by a number of                   public prosecutors, court employees, law
    contracting authorities for the sole purpose          officers and members of the armed forces;
    of carrying out an activity within the
    meaning of Article 163 to any of the              (f) research and development service contracts
    contracting authorities involved, or                  other than those where the benefits accrue
                                                          exclusively to the contracting authority for
(b) when the contract is awarded by a                     its use in the conduct of its own affairs, on
    contracting authority to such a joint venture         condition that the service provided is wholly
    of which it forms part, provided that the             remunerated by the contracting authority.
    joint venture has been set up in order to
    carry out the activity concerned over a           (g) when the services are provided by any of the
    period of at least three years and that the           contracting authorities specified in Article
    instrument setting up the joint venture               162 (1) (a) or the joint ventures set up by
    stipulates that the contracting authorities,          them on the basis of exclusive rights derived
    which form it, will be part thereof for at            from law.
    least the same period.



                                                                                                     77
                     Article 175
                                                                        Article 175/B
The procedure set forth in this Chapter shall not
apply                                                  1. The exception specified in Article 170 may
                                                       be applied, if the European Commission
(a) to supply contracts that concern a state
    secret or a service secret or the essential        (a) has established in a procedure specified in
    security interests of the country (national            paragraph 2, the fact that the given activity
    security), and contracts requiring special             is exposed to real competition, or
    security measures;
                                                       (b) has not adopted a decision within the period
(b) to supply contracts and design contests                specified in paragraph 2.
    where the contract is awarded pursuant to a
    particular procedure laid down in an               2. Article 30 paragraphs 5 and 6 of Directive
    international agreement concluded with a           17/2004/EC of the European Parliament and of
    non-member country, which covers supplies          the Council shall govern the procedure of the
    intended for the joint implementation or           European Commission.
    exploitation of a project or design contest by
    the signatory States;                                               Article 175/C

(c) to supply contract where the contract is           1. The decision of the European Commission
    awarded pursuant to a special procedure laid       on the applicability of Article 170 may be
    down in an international agreement, or             initiated by the Office of Economic Competition
    international memorandum of understanding          or the contracting authority, informing the
    or co-operation agreement which relates to         Council for Public Procurement at the same time,
    the stationing, passing through and                if it is believed that the conditions of the
    activation of troops (military forces);            applicability of Article 170 exist for all the
                                                       activities specified in Article 163 (1). The
(d) to supply contracts awarded pursuant to the        detailed rules for the application of this
    particular procedure specified by an               procedure are set by the 15/2005/EC Decision of
    international organisation.                        the Commission. The Commission may initiate
                                                       the procedure on the applicability of Article 170
     Procedure for establishing whether a given        ex officio.
      activity is directly exposed to competition
                                                       2. If the procedure of the European
                   Article 175/A                       Commission is initiated by the Office of
                                                       Economic Competition, with the dispatch of its
1. The applicability of Article 170 shall be           opinion with explanation it shall inform the
decided in conformity with the provisions on           European Commission at the same time, of all
competition in the Treaty establishing the             relevant facts in connection with the performance
European Union. The characteristics of the             of the given activity under conditions of
activity specified in Article 163 (1), the existence   competition, in particular of any provisions,
of the alternative services, the prices and the        administrative      decisions   or     agreements
actual or potential presence of more than one          concerning compliance with the conditions set
supplier of the services in question shall be          out in Article 175/A.
especially examined.
                                                       3. If the adoption of the decision is initiated by
2. For the purposes of paragraph 1, access to a        the contracting authority or the European
market shall be deemed not to be restricted if the     Commission ex officio, the Office of Economic
Member State has implemented and applied the           Competition shall inform the European
provisions in Annex XI of Directive 17/2004/EC         Commission of the information specified in
of the European Parliament and of the Council. If      paragraph 2, if requested.
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.



78
4.65                                                 published in the Official Journal of the European
                                                     Union for the subsequent two years.
             Community thresholds
                                                     2. The thresholds referred to in paragraph 1
                   Article 176                       shall also be published by the Council for Public
                                                     Procurements in the Public Procurement
1. For the purposes of this Chapter the              Bulletin.
threshold for goods and service contracts is EUR
422.000.66
                                                               Value of public procurements
2. For the purposes of this Chapter the
threshold for works contracts is EUR                                     Article 179
5.278.000.67
                                                     1. The value of a public contract shall be the
                   Article 177                       highest consideration requested or offered in
                                                     general for its subject at the time of the
For the purposes of this Chapter (Title 20) the      beginning of the contract award procedure,
threshold for design contests shall be as follows:   which is to be calculated net of VAT and taking
                                                     into account the provisions of Articles 36 to 40
(a) EUR 422.000 where the design contest             and paragraph 2 (hereinafter referred to as
    envisages the award of a service contract;68     ‘estimated value’). The value of total
                                                     consideration is to be calculated taking into
(b) EUR 422.000 in the case of all design            account the value of the option to buy.
    contests where the contest prize and the total
    amount of payments to be made to                 2. The estimated value of a procurement shall
    participants equals or exceeds these             include the prizes and payments (commissions)
    thresholds.69                                    paid by the contracting authority to candidates or
                                                     tenderers where the contracting authority
                   Article 178                       provides such payments to candidates, tenderers.

1. The value of the thresholds under Articles        3. The time of the beginning of the contract
176 to 177 and 181 (1)–(2) expressed in Euro         award procedure shall be the date of publication
and in national currencies (in HUF) shall be         of the notice whereby the contract award
                                                     procedure is launched, or, in the cases of a
65
   This provision is not in force from 11 January    negotiated procedure without prior publication of
2007.                                                a tender notice and in specific cases of a
66
   Pursuant to the Regulation 1422/2007/EK (4        simplified procedure, it shall be the date when
December 2007) of the European Commission            the invitation is sent or, in specific cases, that of
from 1 January 2008 EUR 412.000 (instead of          the beginning of the negotiation, respectively.
EUR 422.000), corresponding value in the             For the purposes of Article 40 (2) (a) this shall
national currency HUF 106.024.450                    be the governing date.
67
   Pursuant to the Regulation 1422/2007/EK (4
December 2007) of the European Commission            4. Where a contract award procedure as
from 1 January 2008 EUR 5.150.000 (instead of        specified in this Chapter is to be conducted
EUR 5.278.000), corresponding value in the           according to Article 40 (2) due to the aggregate
national currency HUF 1.325.305.627                  value of several supply products each of which
68
   Pursuant to the Regulation 1422/2007/EK (4        has a value below the Community threshold,
December 2007) of the European Commission            their acquisition through more than one contract
from 1 January 2008 EUR 412.000 (instead of          award procedures under this Chapter despite the
EUR 422.000), corresponding value in the             calculation of their aggregate value shall not
national currency HUF 106.024.450                    constitute an act of avoidance of the application
69
   Pursuant to the Regulation 1422/2007/EK (4        of this Act.
December 2007) of the European Commission
from 1 January 2008 EUR 412.000 (instead of          5. Where no account has been taken of the
EUR 422.000), corresponding value in the             provisions of Article 40 (2) in calculating the
national currency HUF 106.024.450                    estimated value, the supply products still to be



                                                                                                      79
procured in the fiscal year or in the twelve
months in question may, regardless of their          7. In the event of an unsuccessful open,
individual value, only be covered by a contract      restricted or negotiated procedure, the
which is to be concluded pursuant to a contract      contracting authority shall decide to launch a
award procedure under this Chapter.                  new procedure, in conformity with the rules for
                                                     the application of the various types of
                                                     procedures, except where it no longer intends to
                     Title 12                        carry out the procurement in question.

     General rules concerning special contract       8. Save as otherwise provided for by this
                award procedures                     Chapter, the rules set forth in Chapter IV shall
                                                     apply as appropriate to open, restricted and
        Types of contract award procedures           negotiated procedures.

                    Article 180                                      Prior information

1. Contract award procedures may be open or                             Article 181
restricted or negotiated procedures. A negotiated
procedure without notice may only take place if      1. Contracting entities may prepare – after the
it is permitted by this Chapter.                     beginning of the fiscal year- a periodic indicative
                                                     information notice for the given year or
2. In open or restricted procedures the              maximum for the subsequent 12 months in which
contracting authority shall be bound by the          they indicate
conditions specified in the invitation and in the
documentation, while the tenderer shall be bound     a)   the total procurement under goods contracts
by his tender. In open or restricted procedures no        (exclusive of exceptions and equalling or
negotiation may take place.                               exceeding Community thresholds), where
                                                          the total estimated value equals or exceeds
3. Depending on the type of the notice, the               EUR 750.000;
following contract award procedures may be
distinguished: open procedure launched by a          b) the total procurement under contracts for
tender notice; restricted or negotiated procedure       services listed in Annex III (exclusive of
launched by an invitation to participate;               exceptions and equalling or exceeding
restricted or negotiated procedures launched by a       Community Thresholds), where the total
periodic indicative information notice, or              estimated value equals or exceeds EUR
restricted and negotiated procedures launched by        750.000.
a pre-qualification notice.
                                                     2. Contracting authorities may prepare a
4. The contracting authorities may also apply a      periodic indicative information notice in which
procedure for a framework agreement (Title 18).      they indicate the essential characteristics and
                                                     conditions of public works contracts they
5.70 The contracting authority may set up and        envisage awarding where the estimated value of
operate a dynamic purchasing system, the             these contracts equals or exceeds the Community
purpose of which is to pre-select those who are      threshold governing public works contracts. The
entitled to participate in the procedures to be      information notice shall be prepared as soon as
conducted in order to realise certain public         possible after the decision approving the
procurements. The detailed rules pertaining to       implementation of the works.
the dynamic purchasing system shall be
determined in a separate act of legislation.                            Article 182

6. In the course of a contract award procedure       1. Contracting authorities shall publish their
there shall be no changeover from one type of        periodic indicative information by means of a
procedure to another one.                            notice. Such notices shall be drawn up in
                                                     accordance with a model given in the relevant
70
  This paragraph entered into force on 1 January     legislation, and they shall be sent by the deadline
2007.                                                provided for in Article 181 (1), (3) at the latest.



80
Contracting authorities may publish their             governing date with regard to the legal effects
periodic indicative information notice on their       related to the notice.
homepage. Publication of a periodic indicative
information notice on a homepage shall take           2. The contracting authorities shall send the
place only after the dispatch of the notice by        notices as rapidly as possible and by the most
electronic means to the Office for Official           appropriate channels via the Public Procurement
Publications of the European Communities. Such        Council to the Office for Official Publications of
notices shall be drawn up in accordance with a        the European Communities.
template given in the relevant legislation in this
case as well.                                         3. The Office for Official Publications of the
                                                      European Communities shall publish the notices
2. In the case of public supply contracts,            not later than 12 days after their dispatch; or in
indicative consolidated information notices shall     case of sending the notice by electronic means
be prepared by product categories, and the            and in a manner specified in the relevant
relevant product category shall be specified by       legislation or, in exceptional cases, when the
reference to CPV.                                     notice on the tender notice or invitation to
                                                      participate (Articles 189 and 202) has been
3. In the case of service contracts, indicative       submitted by fax, at the request of the
overall information notice shall be prepared by       contracting authority this period shall be reduced
categories of services listed in Annex 3.             to five days.

4. The contracting authority may publish a            4. Before forwarding or dispatching the notice
periodic indicative information notice on its         sent by the contracting authority, the Public
major project or public works without repeating       Procurement Council (Secretariat) shall verify
the information having been included in a             that the notice complies with the legislation
previous notice, provided that it clearly states      applicable to public procurement. For controlling
that the latter notice is of supplementary nature.    notices, a fee - the amount of which is specified
                                                      in the relevant legislation - shall be paid.
5. Publication of a periodic indicative
information notice shall not entail any obligation    5. The Public Procurement Council shall
to conduct a procedure for the award of a             dispatch the notice for publication. The Public
contract included therein.                            Procurement Council shall have proof of the
                                                      dispatch date.
6-7.
                                                      6.71 When the notice is communicated not by
                   Article 183                        electronic means, or it is communicated by
                                                      electronic means but not in accordance with the
If the periodic indicative information notice also    procedures specified in the relevant legislation,
serves to invite a restricted or negotiated           the Public Procurement Council – on the request
procedure, the provisions set forth in Title 15       of the contracting authority- sends the notice to
shall be applied.                                     the Office for Official Publications of the
                                                      European Communities by electronic means in
       Sending and publication of notices             accordance with the relevant legislation. For
                                                      transmitting the notice in this way, by electronic
                   Article 184                        means, a fee – specified in the relevant act of
                                                      legislation – shall be paid.
1. For the purposes of this Chapter, publication
of a notice shall mean its publication in the         7. The Office for Official Publications of the
Official Journal of the European Union and in         European Communities sends a confirmation of
the Tenders Electronic Daily (hereinafter             the publication of the notices communicated,
referred to as ‘TED data bank’), unless provided      indicating the date of publishing. Such
otherwise in this Chapter. In the event of            confirmation shall constitute proof of
publishing the notice on the homepage of the          publication.
contracting authority [Article 182 (1)] the date of
publishing it on the homepage shall be the            71
                                                        This paragraph entered into force on 1 January
                                                      2007.


                                                                                                     81
                   Article 185                                              Title 13

1. The notices under this Chapter shall be                             Open procedure
published in full in the Official Journal of the
European Union and in the TED data bank in the                        Rules to be applied
official language chosen by the contracting
authority. The summary of the key elements of                             Article 188
the notices shall be published in the official
languages of the European Union, the text drawn        In respect of open procedures, the rules set forth
up and sent in the official language chosen by the     in Title 3 of Chapter IV (Articles 48–99) – also
contracting authority alone being authentic.           taking into consideration the provisions of Title
                                                       13 – shall be applied as appropriate.
2. The cost of publication of the notices in the
Official Journal of the European Union (in the                     Launching the procedure
TED data bank) shall be borne by the European
Union.                                                                    Article 189

3. Detailed rules for the sending and                  The open procedure is launched by an tender
publication of notices shall be laid down in the       notice which shall be published in a notice be
relevant legislation.                                  drawn up by the contracting authority in
                                                       accordance with a template provided in the
                   Article 186                         relevant legislation.

Contracting authorities may also request the                        Technical specifications
publication, within the meaning of Article 184
(1), of notices concerning public contracts the                           Article 190
publication of which is not obligatory in
accordance with this Chapter.                          The contracting authority shall provide the
                                                       technical specifications for public procurement
                   Article 187                         regarding the provisions of Article 58.

1. The notices covered by this Chapter (Article                           Article 191
184 (1)) shall be published for information by
the Public Procurement Council in the Public           1. At request, the contracting authority shall
Procurement Bulletin according to the relevant         make available to the tenderers the technical
legislation, therefore contracting authorities shall   specifications regularly referred to, including the
send the notices to be published to the Public         technical specifications referred to in the periodic
Procurement Council. Contracting authorities           indicative information notice.
may publish the notices by any other channels,
provided that such publication takes place only        2. If the technical specifications referred have
after the dispatch of the notice to the Office for     been defined in documents accessible to the
Official Publications of the European                  tenderers it is sufficient if the contracting
Communities. Notices so published shall not            authority makes reference to such documents.
contain information other than that published in
the Official Journal of the European Union (in                            Article 192
the TED data bank), or that published on the
homepage of the contracting authority, and shall       In the context of provision of technical
mention the date of dispatch to the Office for         specifications, qualification and selection of the
Official Publications, and the date of publishing      tenderers, the evaluation of the tenders and
on the homepage.                                       award of contracts, contracting authorities may
                                                       impose requirements with a view to protecting
2. The publication rules laid down in Part             the confidential nature of information which they
Three shall apply as appropriate to the                make available. The above shall not prejudice
publication in the Public Procurement Bulletin of      the provisions in Article 96 (3) and Article 99
notices covered by this Chapter.                       (4).



82
                                                       4. The time limit to submit tenders referred to
              Grounds for exclusion                    in paragraphs (1)-(3) may be reduced by five
                                                       days, provided that the contracting authority
                   Article 193                         offers free and full direct access by electronic
                                                       means to the tender specifications for the
In respect of the exclusion criteria, the provisions   tenderers from the date of publication of the
set forth in Articles 60–63 and 71 (3) shall be        notice, in accordance with the relevant
applied as appropriate, provided however, that in      legislation, specifying in the text of the notice the
the cases specified in Article 63 (2) (c) and (d) a    internet address at which this documentation is
simple statement may also be accepted.                 accessible.

 Suitability of the tenderer and its subcontractor     5. Where the tender specifications are too
                                                       bulky, or where the tenders can be made only
                   Article 194                         after on-the-spot inspection of the documents or
                                                       after a visit to the site, the contracting authority
With regard to the suitability of the tenderer and     shall fix the time limit to submit tenders
its subcontractor intended to be employed for the      accordingly, in a time limit longer than that set
performance of more than 10% of the contract,          out in paragraphs (1)-(4).
the provisions stipulated in Article 65–67,
Article 68 (4)–(5), Articles 69 and Article 71 (4)     6. The time limit to submit tenders shall always
shall apply as appropriate, provided that the          be set leaving sufficient time for the preparation
contracting authority may prescribe other              of appropriate tenders. The cumulative effect of
objective suitability criteria and methods of          the reductions provided for in paragraphs (2)-(4)
certification, nevertheless, the provisions of         may in no case result in a time limit less than 22
Article 69 (3) shall be applied as appropriate.        days, or when the notice is communicated by fax
                                                       or electronic means, less than 15 days from the
      Final date fixed for receipt of tenders          date on which the notice is sent.

                   Article 195                                   Abnormally low consideration

1. The time limit to submit tenders shall be                               Article 196
fixed by the contracting authorities at not less
than 52 days from the date of dispatch of the          If a tender contains abnormally low price, the
notice.                                                contracting authority shall act according to
                                                       Article 86.
2. If the contracting authority had dispatched a
periodic indicative information notice at least          Invalid tenders, disqualification of tenderers
fifty-two days but no more than twelve months
prior to the tender notice, which also contained                           Article 197
the data available at the dispatch of the tender
notice according to the tender notice template         1. In respect of invalid tenders and the
referred to in Article 208 (2), the time limit to      disqualification of tenderers, the provisions set
submit tenders indicated in paragraph 1 may be         forth in Article 88 shall apply as appropriate,
shorter. In this case, as a general rule, the time     provided that the contracting authority may
limit to submit tenders shall be at least thirty-six   exclude from the procedure tenderers
days after the dispatch of the tender notice,
which time limit may, in case of extreme               (a) who are not eligible for national treatment
urgency, be reduced to twenty-two days provided            [Article 1 (3)]; or
that the notice is dispatched by electronic means.
                                                       (b) who offer a product in the tender not eligible
3. The time limit to submit tenders referred to            for national treatment due to its place of
in paragraphs 1 and 2 may be shortened by seven            origin [Article 1 (3)], or,
days, provided that the contracting authority
sends the notice by electronic means in                (c) submitting an offer for public supply where
accordance with the relevant legislation.                  the proportion of the products originating
                                                           from a country not eligible for national



                                                                                                        83
      treatment [Article 1 (3)] exceeds fifty           the tenderer quoting the lower price. In the event
      percent of the total value of the products        of identical prices, Article 90 (2) shall be applied
      constituting the tender.                          as appropriate if it was referred to by the
                                                        contracting authority in its tender notice.
2. For the purposes of paragraph 1 (c) software
used for electronic telecommunications network          4. Contracting authorities shall not apply
equipment shall be considered as goods.                 paragraph 1, where the preference of a tender
                                                        would oblige the contracting entity to acquire
           Acceptance of variant offers                 equipment having technical characteristics
                                                        different from those of existing equipment,
                    Article 198                         resulting in incompatibility, technical difficulties
                                                        in     operation     and       maintenance,       or
1. In the case of variant (alternative) offers          disproportionate costs.
only those may be admissible which meet the
minimum        requirements       and      technical          Notice on the result of the procedure
specifications set out by the contracting authority
in the tender notice or the tender specifications.                         Article 200

2. Contracting authorities may not reject the           1. Contracting authorities shall publish the
variant on the sole grounds that                        result of the award procedure in a notice drawn
                                                        up according to the template provided in the
(a)                                                     relevant legislation.

(b) it would lead, if successful, to a supply           2. The notice shall be dispatched for
    contract rather than a public service contract,     publication in the Public Procurements Bulletin
    or vice versa.                                      not later than within five working days from the
                                                        announcement of results, or the expiry of the
              Preferential treatment                    deadline for the announcement of results.

                    Article 199                         3. The notice shall be dispatched for
                                                        publication pursuant to Article 184 (1) not later
1. In the case of contracts for public supply,          than within five working days from the
where two or more tenders are identical in the          conclusion of the contract, or, failing this, the
light of the evaluation criteria defined in Article     expiry of the deadline for the conclusion of the
57 (2), the contracting authority shall give            contract.
preference to the tenders where the proportion of
the products originating from a country eligible
for national treatment exceeds fifty percent of the                          Title 14
total value of the products constituting the
tender.                                                      Restricted and negotiated procedures
                                                             launched by a notice for invitation to
2.    For the purposes of paragraph 1                                     participate

(a) preferential tenders shall be deemed                                 Applicable rules
    identical, if the price difference – as
    compared to the price quoted in the non-                               Article 201
    preferential tender [Article 197 (1) (c)] –
    does not exceed three percent,                      1. In respect of restricted procedures launched
                                                        by a notice for invitation to participate, the rules
(b) software       used       for          electronic   pertaining to restricted procedures set forth in
    telecommunications network            equipment     Chapter IV (Titles 3-5) – also taking into
    shall be considered as goods.                       consideration the provisions of Titles 13 and 14
                                                        – shall be applied as appropriate. Article 118 (3)
3. In such a case, the contract shall be awarded        shall not be applicable and Article 136 may not
to the preferential tenderer, and if there are          be applied.
several tenders subject to preferential treatment,



84
2. In respect of negotiated procedures launched         number or range of tenderers, provided that it
by a notice for invitation to participate, the rules    sends an invitation to tender to candidates at
pertaining to negotiated procedures launched by         least equalling the number or range set.
a notice set forth in Chapter IV (Titles 3–4,
Articles 126–130) – also taking into                    2. The range or number of candidates invited to
consideration Titles 13 and 14 – shall be applied       tender shall be determined in the light of the
as appropriate. Article 118 (3) and Article 124         specific nature of the subject of the contract and
(2) shall not be applicable and Article 136 may         shall, in any event, be sufficient to ensure
not be applied.                                         genuine competition. The range must number at
                                                        least three tenderers.
            Launching the procedure
                                                        3. If the contracting authority prescribes the
                    Article 202                         number or range of participants, this shall be
                                                        indicated in the invitation to participate.
The restricted and negotiated procedures are
launched by an invitation to participate which          4. In the invitation to participate the
shall be published in a notice be drawn up by the       contracting authority may not identify in advance
contracting authority in accordance with the            the parties it intends to invite.
template provided in the relevant legislation.
                                                        5. If the contracting authority prescribes a
              Participation deadline                    number or range, it shall also state in the
                                                        invitation to participate the method of ranking
                    Article 203                         suitable candidates to be applied if the number of
                                                        suitable candidates exceeds the number or range
1. As a general rule, the contracting authority         prescribed.    For ranking, the financial and
shall not determine the time limit for                  economic standing, the technical capacity and
participation as shorter than a period of thirty-       professional qualification of the candidate to
seven days from the date of dispatching the             perform under the contract shall be taken into
notice for invitation to participate. Exceptionally,    account.
in cases of extreme urgency the time limit for
participation may be reduced to twenty-two days,        6. The contracting authority shall send an
and if the notice is communicated by fax or by          invitation to tender to all the candidates selected
electronic means, the deadline may be reduced to        – based on their financial and economic
fifteen days.                                           standing, technical capacity and professional
                                                        qualification – directly, simultaneously, and in
2. The time limit for participation of thirty-          writing, provided that this is allowed by the
seven or twenty-two days, as specified in               number of candidates deemed suitable. If the
paragraph 1, may be reduced by no more than             contracting authority did not prescribe the
seven days, provided that the notice for                number or range of participants, it shall send an
invitation to participate is communicated by the        invitation to tender to all suitable candidates.
contracting authority by electronic means, in           Candidates invited to tender shall not submit
accordance with the relevant legislation.               joint tenders.

3. The cumulative effect of the reductions                    Final date fixed for receipt of tenders
provided for in paragraphs 1 and 2 may in no
case result in a time limit for participation of less                      Article 205
than fifteen days from the date on which the
notice for invitation to participate is sent.           1. The time limit for the receipt of tenders may
                                                        be set by mutual agreement between the
    Determination of the number or range of             contracting authority and the selected candidates,
                  tenderers                             provided that all the candidates have the same
                                                        time to prepare and submit their tenders.
                    Article 204
                                                        2. When the contracting authority and the
1. In the case of restricted and negotiated             selected candidates, in accordance with
procedures, the contracting authority may set the       paragraph 1, cannot reach agreement on the time



                                                                                                        85
limit for the receipt of tenders, the contracting      initiated by way of such notices the rules set
authority shall fix the time limit which shall, as a   forth in Article 201 (2) shall be applied as
general rule, not be less than twenty-four days        appropriate, also taking into consideration the
from the date of the invitation to tender.             provisions stipulated in Title 15.
Exceptionally, in cases of extreme urgency the
time limit to submit tenders may be reduced to           Announcement of the procedure, the periodic
ten days, provided that the invitation to tender is              overall information notice
communicated by fax or by electronic means.
                                                                          Article 208
3. The twenty-four days time limit for the time
limit to submit tenders, as prescribed in              1. A periodic indicative information notice
paragraph 2, may be further reduced by the             may be applied to announce both a restricted and
contracting authority, provided that the               a negotiated procedure.
contracting authority offers free and full direct
access to the tender specifications by electronic      2. The notice shall be drawn up according to
means for the tenderers from the date of dispatch      the template provided in the relevant legislation,
of the invitation to tender, in accordance with the    and published. In the notice the contracting
relevant legislation, and specifying in the text of    authority shall state especially the following:
the notice the internet address at which this
documentation is accessible.                           (a) the description of the subject-matter of the
                                                           planned contract(s);
4. The cumulative effect of the reductions
provided for in paragraphs (2)-(3) may in no case      (b) the type of the award procedure (restricted
result in a time limit to submit tenders of less           or negotiated procedure) to commence
than 10 days. In case of a mutual agreement                without the publication of any further notice,
between the contracting authority and the                  by way of a direct invitation to participate;
selected candidates, in accordance with
paragraph 1, a shorter time limit may be set.          (c) the deadline for the submission of the
                                                           written statement expressing interest
5. The time limit to submit tenders shall always           (hereinafter referred to as ‘declaration of
be set leaving sufficient time for the preparation         intent’), the language(s) of the statement;
of appropriate tenders.
                                                       (d) the planned date of commencement of the
                   Article 206                             procedure(s).

The contracting authority shall ensure that the           Starting the procedure, direct invitations to
tender specifications be available from the                               participate
dispatch of the invitation to tender until the
expiry of the time limit to submit the tenders.                           Article 209

                                                       1. Based on the declarations of intention
                     Title 15                          submitted before the deadline, the contracting
                                                       authority shall request all declarers directly,
Restricted and negotiated procedures invited           simultaneously and in writing to confirm their
 by way of a periodic indicative information           declarations of intention and to submit their
                   notice                              applications to participate (direct invitations to
                                                       participate).
                 Applicable rules
                                                       2. The direct invitations to participate shall be
                   Article 207                         sent within twelve months after the publication
                                                       of the announcement on the periodic indicative
In respect to restricted procedures initiated by       information at the latest.
way of a periodic indicative information notice,
the rules pertaining to restricted procedures          3. Restricted and negotiated procedures are
launched by way of a notice, as set forth in           started by sending out the direct invitations to
Article 201 (1), while to negotiated procedures        participate. With respect to the starting of the



86
procedure Article 48 (2)–(3) shall apply mutatis     (l) the address the application to participate is
mutandis.                                                to be sent to;

4. The contracting authority shall not be            (m) the language(s) of the application;
required to start the procedure if some force
majeure occurring after the publication of the       (n) the place and time of the opening of the
periodic indicative information notice renders it        applications;
unable to make the contract or to perform under
an executed contract. In such cases the              (o) those entitled to attend the opening of the
contracting authority shall immediately inform in        applications;
writing the submitters of declarations of
intention and the Public Procurement Council.        (p) time of announcing the result of the
                                                         application phase;
                   Article 210
                                                     (q) the planned date of sending the invitation to
1. The direct invitation to participate shall            tender;
contain at least the following:
                                                     (r) the assessment criterion of tenders according
(a) name, address, phone and fax number (e-              to Article 57 (2);
    mail) of the contracting authority;
                                                     (s) the method, place and financial requirements
(b) if need be, the data under point (a) of the          of collecting the documentation;
    organisation designated by the contracting
    authority, which is responsible for              (t) reference to the published periodic
    distributing tender specifications, technical        indicative information notice and the date of
    specifications (Article 191) and additional          publication;
    (interpretative) information;
                                                     (u) the date of dispatching the direct invitations
(c) the type of procurement              procedure       to participate;
    (restricted or negotiated);
                                                     (v) other information according to the template
(d) the object and quantity of the procurement           provided in the relevant legislation.
    (including buy options);
(e) for regular or periodical contracts (Article     2. The contracting authority may specify in the
    37) the object and quantity of the next          direct invitation to participate the number or
    procurement and – if possible – the planned      range of tenderers provided that it sends an
    time of publication of the corresponding         invitation to tender to candidates at least
    notice;                                          equalling the number or range set.

(f) the specification of the contract;                                  Article 211

(g) the term of the contract or the performance      1. As a general rule, the contracting authority
    deadline;                                        shall not determine the time limit for
                                                     participation as shorter than a period of thirty-
(h) grounds for disqualification;                    seven days from the date of dispatching the
                                                     notice for direct invitation to participate.
(i) the requirements of qualification and the        Exceptionally, in cases of extreme urgency the
    details specified in Article 69 (2);             time limit for participation may be reduced to
                                                     twenty-two days, and if the notice is
(j) whether the correction of deficiencies is        communicated by fax or by electronic means, the
    allowed or prohibited;                           time limit may be reduced to fifteen days.

(k) the deadline for submitting applications to      2. The time limit for participation of thirty-
    participate;                                     seven or twenty-two days, as specified in
                                                     paragraph 1, may be reduced by no more than
                                                     seven days, provided that the notice for



                                                                                                    87
invitation to participate is communicated by the        (l) the binding period of the tender (except for
contracting authority using electronic means, in            negotiated procedures);
accordance with the relevant legislation.
                                                        (m) for negotiated procedures, the course and the
3. The cumulative effect of the reductions                  fundamental rules specified by the
provided for in paragraphs 1 and 2 may in no                contracting authority of the negotiations, and
case result in a time limit for participation of less       the date and time of the first negotiation;
than fifteen days from the date on which the
notice for invitation to participate is sent.           (n) the date and time of the announcement of
                                                            the winners and the planned date and time of
                Invitation to tender                        the conclusion of the contract, if not
                                                            otherwise indicated in the direct invitations
                    Article 212                             to participate;

The invitation to tender shall include at least the     (o) the date of sending the invitation to tender.
following:

(a) name, address, phone and fax number (e-                                  Title 16
    mail) of the contracting authority;
                                                            Restricted and negotiated procedures
(b) reference to the published periodic                 published by means of prequalification notices
    indicative information and its day of
    publishing;                                                          Applicable rules

(c) the method, place and financial requirements                           Article 213
    of collecting the documentation, if it is not
    sent simultaneously with the invitation to          The rules set forth in Article 201 (1) and (2) shall
    tender;                                             apply to restricted procedures announced in a
                                                        prequalification notice and negotiated procedures
(d) in compliance with the direct invitations to        announced in a prequalification notice
    participate, if need be, the certificates,          respectively in accordance with the provisions of
    declarations and documents certifying that          Title 16.
    the tenderer or its subcontractor is not under
    disqualification in the tendering phase and          Publication of the procedure, prequalification
    continues to fulfil the contract performance                             notice
    requirements;
                                                                           Article 214
(e) the contract evaluation criteria (Article 57) if
    the direct invitations to participate did not       1. Restricted and negotiated procedures may
    include the details specified in Article 57         also be published by means of prequalification
    (3);                                                notices.

(f) whether the correction of deficiencies is           2. The prequalification notice shall be drawn
    allowed or prohibited;                              up according to a template provided in the
                                                        relevant legislation and shall be published. The
(g) the deadline for submitting the tenders;            contracting authority shall include in the notice
                                                        especially the following:
(h) the address the tenders are to be sent to;
                                                        (a) name, address, phone and fax number (e-
(i) the language(s) of the tender;                          mail) of the contracting authority;

(j) the place and time of tender opening;               (b) the purpose of the prequalification system,
                                                            the subject of the public procurements
(k) the persons entitled to attend the tender               planned for the relevant period of time;
    opening;




88
(c) information on the duration           of   the    qualified candidates and the dates of inclusion in
    prequalification system;                          the list. The list shall be made public.

(d) the method, place and financial requirements                         Article 216
    of    collecting     the     prequalification
    documentation;                                    1. The contracting authority shall specify, in
                                                      compliance with Article 60 (1), Article 61 (1)–
(e) the criteria of prequalification and the means    (2), Article 63 (2), Articles 66–68 and Article 69
    of certification or a comprehensive               (1)–(3), the conditions of inclusion in the
    description thereof;                              candidates’ list (prequalification criteria) and the
                                                      means of certification, while in cases specified in
(f) the address the prequalification application      Article 63 (2) c) and d) a simple declaration may
    is to be submitted to.                            be accepted, and other objective prequalification
                                                      criteria and means of certification of the
3. If the duration of the prequalification system     qualification may be required but the provisions
is more than three years the prequalification         of Article 69 (3) shall still be complied with. The
notice shall be published annually. If the            contracting authority shall have the right to
duration is shorter the first notice will suffice.    choose from the stated prequalification criteria.

   The contracting authority’s prequalification       2. When specifying the prequalification
  system, the prequalification of the candidates      criteria, the candidates shall not be discriminated
                                                      based on their seat or place of establishment, or
                   Article 215                        in any other way. Contracting authorities shall
                                                      not require certificates which are already
1. The contracting authority may set up and           available to them from the candidates.
operate a system for the candidates’
prequalification, aimed at a preliminary selection                       Article 217
of those entitled to participate in restricted and
negotiated procedures for specific procurements.      1. The contracting authority shall prepare
                                                      prequalification documentation in which it shall
2. The contracting authority shall provide for        especially specify those mentioned in Article 215
the candidates to be able to apply for                (3), and the time limit for the assessment of
prequalification at any time after the publication    prequalification applications. The time limit for
of the prequalification notice and during the         the assessment shall not be longer than six
entire time of operation of the system.               months. If the assessment is expected to take
                                                      longer than four months, the contracting
3. The contracting authority shall specify – in       authority shall inform the candidates on the
accordance with Article 216 and if applicable         grounds of the longer assessment period and the
with Article 58 – the details of the                  expected date of the assessment of their
prequalification system’s operation and the           application within two months following the
criteria of prequalification and the means of         submission of the prequalification application.
certification. The prequalification system may
comprise different degrees of qualification.          2. When a contracting authority accepts –
                                                      considering the prequalification criteria – the
4. If needed, the contracting authority may           prequalification system of another contracting
review and amend the rules of operation of the        authority as compatible with its own it shall
prequalification system, the qualification criteria   mention this and the name and address of the
and the means of certification.                       other contracting authority as well as the
                                                      acceptance of the other prequalification in the
5. The contracting authority shall keep a record      prequalification documentation.
of the pre-qualified candidates (the list of pre-
qualified candidates). The list may be broken         3. The contracting authority shall provide for
down by the subject of public procurement or its      the prequalification documentation to be
subgroup. The list shall include the name and         available from the publication of the
address (contact details) of at least two pre-        prequalification notice. If an candidate asks for
                                                      the prequalification documentation to be sent to



                                                                                                      89
it the contracting authority or the organisation      6. The pre-qualified candidate in whose
designated by it shall grant such a request within    prequalification data or conditions some changes
two working days. The prequalification                occur shall inform the contracting authority to
documentation shall also be sent, if requested, to    that effects immediately or within five working
the Public Procurement Council.                       days following the occurrence of such changes at
                                                      the latest. If an amendment results in some pre-
                   Article 218                        qualified candidates’ failure to comply with the
                                                      new criteria the contracting authority shall
If the contracting authority amends the rules of      remove them from the list.
the      prequalification     system   or     the
prequalification criteria or the means of             7. The contracting authority may remove
certification, it shall publish a new                 candidates from the prequalification list at its
prequalification       notice      and    inform      own discretion if the available data point to such
simultaneously and directly in writing those          candidates’      non-compliance       with     the
candidates that have already been included in the     prequalification criteria.
prequalification list and that have submitted a
prequalification application.                         8. 15 days before their removal from the
                                                      prequalification list, the contracting authority
                   Article 219                        shall inform in writing the candidates concerned
                                                      and specify the grounds of the decision. The
1. Candidates may ask, at any time, for their         candidates concerned shall make their comments
registration the prequalification list, subject to    in writing for the contracting authority within the
the presentation of the data and facts specified in   time limit specified by the contracting authority.
the prequalification documentation and the
necessary certificates and declaration and other      9. The candidates are entitled to legal remedy
documents.                                            against the rejection of their applications and
                                                      their removal from the list. The candidate
2. The prequalification applications and the          concerned can resort to the procedure of the
candidates’ prequalification shall be assessed        Arbitration Committee of Public Procurements
solely on the basis of the prequalification           [Article 318 (1)].
criteria.
                                                         Initiating the procedure, direct invitation to
3. If a prequalification application is                                   participate
incomplete, the candidate shall be informed of
the deficiencies and invited to supply additional                        Article 220
information.
                                                      1. Restricted      or   negotiated      procedures
4. The contracting authority shall inform the         published by means of a prequalification notice
candidate on its decision after the assessment of     are started by sending out the directs invitation to
the application as soon as possible, but not later    participate. With respect to the starting of the
than 15 days after the decision and, if the           procedure Article 48 (2)–(3) shall apply mutatis
application is rejected, on the grounds of the        mutandis.
decision as well.
                                                      2. In such a procedure the contracting authority
5. If the contracting authority amends the            may invite only those candidates on the
prequalification criteria, those candidates already   prequalification list to submit their applications.
registered on the prequalification list shall also    The contracting authority shall send the
duly certify their compliance with the new or         invitation to all candidates simultaneously and in
amended prequalification criteria. The pre-           writing (direct invitation to participate).
qualified candidates shall be informed to that
effect in the information according to Article        3. The contracting authority shall sand a direct
218. As for submitted applications under              invitations to participate to each pre-qualified
assessment, the contracting authority shall ask       candidate except when the list has been made
the candidates to provide further information to      broken down by the subject of the public
amend the application.                                procurement or its subgroup. In such cases only




90
the pre-qualified candidates in the appropriate      (h) if needed, the list of certificates, declarations
category shall be invited to participate.                and documents to be enclosed with the
                                                         application which certify that the pre-
4. The contracting authority shall not be                qualified     candidate       is    not    under
required to start the procedure according to the         disqualification in the application phase;
pre-qualification notice if some force-majeure
occurring after the publication of the               (i) if need be, requirements concerning the
announcement renders it unable to make the               specific contract more stringent than the
contract or to perform under an executed                 prequalification criteria and what is
contract. In such cases the contracting authority        specified in Article 69 (2);
shall immediately inform in writing the pre-
qualified candidates and the Public Procurement      (j) whether the correction of deficiencies is
Council.                                                 allowed or prohibited;

5. The contracting authority may apply another       (k) the application deadline;
procedure to be announced to the public
procurement specified in the prequalification        (l) the address the application to participate is
procedure especially when the number of pre-             to be sent to;
qualified candidates does not ensure genuine
competition. In such cases the contracting           (m) the language(s) of the application;
authority shall refer to this fact in the new
announcement and shall inform the pre-qualified      (n) the place and time of the opening of the
candidates simultaneously and in writing of the          applications;
publication of the new announcement
immediately after the publication.                   (o) those entitled to attend the opening of the
                                                         applications;
                   Article 221
                                                     (p) the date and time of announcing the winners
1. The direct invitations to participate shall           of the application phase;
contain at least the following:
                                                     (q) the planned date of sending the invitation to
(a) name, address, phone and fax number (e-              tender;
    mail) of the contracting authority;
                                                     (r) the assessment criterion of tenders according
(b) if need be, the data under point a) of the           to Article 57 (2);
    organisation designated by the contracting
    authority, which is responsible for              (s) the method, place and financial requirements
    distributing   documentation,      technical         of collecting the documentation;
    specifications for public procurement
    (Article 191) and additional (interpretative)    (t) reference to the prequalification notice and
    information;                                         the date of publication;

(c) the type of procurement              procedure   (u) the date of sending the direct invitations to
    (restricted or negotiated);                          participate.

(d) the object and quantity of the procurement       2. If there are many pre-qualified candidates,
    (including buy options);                         the contracting authority may specify in the
                                                     direct invitations to participate the number or
(e) the specification of the contract;               range of tenderers with declaring that invitations
                                                     to tender will be sent only to a specified number
(f) the term of the contract or the performance      of candidates having submitted suitable and valid
    deadline;                                        applications or to a number up to the range.

(g) the place of performance;
                                                                         Article 222




                                                                                                      91
As a general rule, the time limit to submit                of the negotiations, and the date and time of
applications to participate shall not be less than         the first negotiation;
thirty-seven days from sending the direct
invitation to participate. The application deadline    (m) the date and time of the announcement of
may exceptionally be shortened to twenty-two               the results and the planned date and time of
days in case of extraordinary urgency, or – if the         the conclusion of the contract, if not
invitations were sent via fax or electronically –          included in the direct invitations to
to fifteen days.                                           participate;

                   Article 223                         (n) the date of sending the invitation to tender.

Pre-qualified candidates may submit an                                      Title 17
application to participate and a tender jointly.
                                                           Negotiated procedure without a notice
               Invitation to tender
                                                                 Application of the procedure
                   Article 224
                                                                          Article 225
The invitation to tender shall include at least the
following:                                             1. The contracting authority may apply a
                                                       negotiated procedure without prior publication of
(a) name, address, phone and fax number (e-            a notice when
    mail) of the contracting authority;
                                                       (a) a procedure referred to in Article 180 (3) has
(b) reference to the prequalification notice and           been unsuccessful in accordance with
    its day of publication;                                Article 92 (a) and Article 115 (a), provided
                                                           that the conditions of the invitation and the
(c) the method, place and financial requirements           documentation      have      not     changed
    of collecting the documentation, if it is not          substantially;
    sent together with the invitation to tender;
                                                       (b) on account of technical characteristics,
(d) the contract evaluation criteria (Article 57) if       artistic considerations or the protection of
    the direct invitation to participate did not           excusive rights the contract can be fulfilled
    include the details specified in Article 57            only by a specific organisation or person;
    (3);
                                                       (c) the procurement is required solely for the
(e) whether the correction of deficiencies is              purpose of research, tests, education or
    allowed or prohibited;                                 development; this case shall not apply to
                                                           instances where profit is intended to be
(f) the tender submission deadline;                        made or where the costs of research and
                                                           development are covered and the latter shall
(g) the address the tenders are to be sent to;             not    jeopardise    future     procurement
                                                           procedures of the same purpose;
(h) the language(s) of the tender;
                                                       (d) the contract is conclude4d on the basis of a
(i) the place and time of opening the tenders;             framework agreement entered into under a
                                                           procedure mentioned in Titles 13–16;
(j) the persons entitled to attend the tender
    opening;                                           (e) it is indispensable because unforeseeable
                                                           extraordinary urgency makes the deadlines
(k) the binding period of the tenders (except for          of the procedures mentioned in Article 180
    negotiated procedures);                                (3) impossible to meet; the extraordinary
                                                           urgency shall not, however, arise on account
(l) for negotiated procedures, the course and              of the contracting authority’s default.
    rules specified by the contracting authority




92
2. Furthermore, the contracting authority may        the original project the contract for which was
apply a negotiated procedure without prior           made under a procedure referred to in Article
publication of a notice for the procurement of       180 (3) and the contracting authority has
construction or services if the implementation of    indicated in the notice starting or announcing the
a previous construction or services contract         original project that it may resort to a procedure
requires the procurement of supplementary            without a notice and the estimated value of the
construction or services because of unforeseeable    new construction was taken into account in the
conditions not specified in the previous contract,   specification of the estimated value of the
provided that the contracting authority cannot       original construction (from the point of view of
separate the supplementary construction or           reaching the community threshold).
services from the previous contract due to
technical or economic reasons or, although the       5. Furthermore, the contracting authority may
supplementary construction or services could be      apply a negotiated procedure without prior
separated but are indispensable for the              publication of a notice for the procurement of
implementation of the original construction or       services if that procurement is made after a
services.                                            design contest procedure defined in this Chapter
                                                     and the contract is made with the winner or one
3. Furthermore, the contracting authority may        of the winners (awarded tenderers) of that
apply a negotiated procedure without prior           contest; in the latter case all the candidates
publication of a notice for the procurement of       (tenderers) recommended by the assessment
goods if                                             panel in the design contest procedure shall be
                                                     invited to the negotiations.
(a) in the course of a partial replacement or
    upgrading of a previously procured goods         6.
    the contract is awarded to the original
    winning tenderer, and the replacement of the                  Other applicable rules
    original wining tenderer would result in the
    procurement of technically incompatible                             Article 226
    goods      or  disproportionate     technical
    difficulties  in    the     operation    and     Negotiated procedures without a notice shall be
    maintenance;                                     governed, mutatis mutandis, by the rules in
                                                     Chapter IV pertaining to negotiated procedures
(b) the goods are listed and procured on a           without an announcement (Title 3, Articles 126–
    commodity market;                                128 and 131–135), according to the provisions of
                                                     Titles 13 and 17.
(c) the exceptionally favourable conditions of
    the procurement are offered for only a short                        Article 227
    period of time and the consideration is well
    below the market prices, and these               1. Except for cases in Article 225 (1) (e) and
    favourable conditions would be lost in           (3) (b) and (d), the negotiated procedure is
    another type of procedure;                       started by sending out the invitation to tender.

(d) the goods are procured under exceptionally       2. In instances in Article 225 (1) (a) and (c) the
    favourable conditions in the course of           contracting authority shall invite at least three
    liquidation, final settlement procedure,         tenderers if possible.
    Court warrant or a similar process connected
    to the personal right of the organisation        3. At the beginning of a negotiated procedure
    concerned.                                       the invitation to tender and a memorandum
                                                     listing the names and addresses of the invitees as
4. Furthermore, the contracting authority may        well as the reasons for a negotiated procedure
apply a negotiated procedure without prior           shall be sent via fax or e-mail or directly to the
publication of a notice for the procurement of       Arbitration Committee of Public Procurements.
construction if the contract is made with a
previous winning tenderer for a construction         4. The deadline for submitting the tenders shall
project identical or similar to the original one,    be so set as to leave sufficient time to prepare
provided that the new construction is linked to      suitable tenders.



                                                                                                    93
                                                     fax or e-mail of the starting of the procedure.
5. In the case of negotiated procedures              The information shall be made in accordance,
according to Article 225 (5), the tenders shall be   mutatis mutandis, with Article 227 (3) and
assessed solely with a view to selecting the         Article 133 (1).
altogether most advantageous tender [Article 57
(2) (b)].                                            3. The contracting authority shall also retain
                                                     the document offering the favourable conditions,
                   Article 228                       according to Article 7 (2).

1.72 In negotiated procedures under Article 225                         Article 230
(1) (e) the negotiation shall be conducted and the
contract be concluded with such a tenderer that is   On the commencement date of negotiated
able to implement the contract within the time       procedures specified in Article 225 (3) (b) and
limit dictated by the extraordinary conditions. In   (d), a memorandum stating the reasons for a
such cases, the tenderer shall declare that the      negotiated procedure and – in cases in (d) – the
grounds of exclusion do not apply to it,             name and address of the organisation concerned
furthermore, it shall attach the official            shall be submitted by the contracting authority
certifications related to the absence of public      without delay via fax or e-mail to the Arbitration
debts specified in Article 60 (1) (e) and Article    Committee of Public Procurements.
61 (2) no later than within thirty days following
the conclusion of the contract. The existence of                        Article 231
the condition in point (g) of Article 60 (1), in
cases pertaining to the scope of Act LXXV of         1. The contracting authority shall publish
1996 on labour health and safety control, shall be   information regarding the success or the failure
controlled by the contracting authority according    of the negotiated procedure in a notice based on
to the data published by the labour safety           a template provided in the relevant legislation.
authority73.
                                                     2. The notice shall be dispatched for
2. The Arbitration Committee of Public               publication in the Public Procurements Bulletin
Procurements shall be immediately informed via       not later than within five working days from the
fax or e-mail of the starting of the procedure.      announcement of results, or the expiry of the
The information shall be made in accordance,         deadline for the announcement of results.
mutatis mutandis, with Article 227 (3) and
Article 133 (1).                                     3. The notice shall be sent for publication
                                                     pursuant to Article 184 (1) not later than within
                   Article 229                       five working days from the conclusion of the
                                                     contract, or, failing this, the expiry of the
1. In a negotiated procedure under Article 225       planned date of the conclusion of the contract.
(3) (c), the contracting authority shall send via
fax or e-mail the invitation to tender immediately                       Title 18
after being informed of the favourable conditions
to the tenderer offering the favourable conditions         Framework agreement procedure
and (if possible) to at least two other tenderers.
The negotiations shall be conducted and the                  The two phases of the procedure
contract with the winner, contrary to the
stipulations of Article 99 (2) be concluded in                          Article 232
writing during the validity of the favourable
conditions.                                          1. Framework agreement procedures consist of
                                                     two phases. In the first phase the contracting
2. The Arbitration Committee of Public               authority (authorities) shall apply an open
Procurements shall be immediately informed via       procedure specified in Title 13 or a restricted or
                                                     negotiated procedure specified in Titles 14–16 in
72
   This clause entered into force on 24 August       order to conclude the framework agreement.
2006.
73
   This provision entered into force on 1 July       2. Under the framework agreement concluded
2007.                                                in accordance with paragraph 1 the contracting



94
authority may resort to one or more negotiated
procedures without a notice [Article 225 (1) (d)]   1. Negotiated procedures without a notice are
in order to implement the specific public           started by sending out in writing and
procurement(s). This second phase of the            simultaneously the invitation to tender to the
procedure shall be governed, mutatis mutandis,      tenderer or tenderers with whom a framework
by the provisions in Article 226 and Title 18.      agreement was concluded. Other tenderers may
                                                    not be involved in the procedure. The Arbitration
             Other applicable rules                 Committee of Public Procurements shall be
                                                    informed of the commencement of the negotiated
                  Article 233                       procedure in accordance with Article 227 (3).

1. The framework agreement procedure shall          2. The contracting authority shall not be
not be used with the view to restricting            required to start the negotiated procedure without
competition.                                        a notice if some force-majeure occurring after
                                                    concluding the framework agreement renders it
2. The contracting authority shall specify in the   unable to make the contract(s) or to perform
announcement starting the first phase of a          under an executed contract. In such cases the
framework agreement procedure or in the direct      contracting authority shall immediately inform in
invitations to participate the range of those       writing the tenderers whom a framework
submitting the most favourable tenders according    agreement was concluded with and the Public
to one of the assessment criteria specified in      Procurement Council.
Article 57 (2), which range shall be the upper
limit of the number of tenderers whom a             3. The contracting authority may apply another
framework agreement will be concluded with.         procedure to be announced [Article 180 (3)] for
The range shall correspond to the subject of the    the public procurement specified in the
procurement and the conditions of the procedure     framework agreement especially when the
and shall ensure genuine competition. The range     framework agreement is concluded for several
shall include at least three tenderers.             years and when the number of tenderers whom a
                                                    framework agreement was made with does not
3. In this procedure Article 90 (2) and Article     ensure real competition. In such cases the
199 (3) shall not be applied to the assessment of   contracting authority shall refer to this fact in the
identical tenders. If there are more identical      new announcement and shall inform the
tenders at the upper limit of the range of those    tenderers with whom a framework agreement
submitting the most favourable tenders,             was made simultaneously and in writing of the
framework agreements with all of such tenderers     publication of the new announcement
may be concluded.                                   immediately after the publication.

4. Framework agreements may be concluded                                Article 235
for a maximum of four years.
                                                    1. The invitation to tender shall include at least
5. Framework agreements shall include the           the following:
material conditions of contracts to be concluded
within a specified period of time under such        (a) name, address, phone and fax number (e-
framework agreements, especially the subject of         mail) of the contracting authority;
the procurement, the extent of consideration and,
if possible, the planned quantity of                (b) reference to the notice starting or
procurements.                                           announcing the first part of the framework
                                                        agreement procedure and the day of
6. The framework agreements shall be public,            publishing;
the contents thereof shall be deemed information
of public interest, except for the annex            (c) reference to      the   executed     framework
mentioned in Article 73 (1), provided that the          agreement;
contents thereof is not in contradiction with
Article 96 (3).                                     (d) the method, place and financial requirements
                                                        of receiving the documentation, if it was not
                  Article 234                           sent together with the invitation to tender;



                                                                                                     95
                                                     framework agreement compared to the relevant
(e) the object and quantity of the procurement;      subject or terms set out in the framework
                                                     agreement that would not have allowed the
(f) the specification of the contract to be          adoption of a negotiated procedure without a
    negotiated;                                      notice. No modification may change any such
                                                     condition of the subject of the contract made on
(g) the term and performance deadline of the         the basis of the framework agreement that is a
    contract;                                        prerequisite of the application of the negotiated
                                                     procedure without a notice.
(h) the place of performance;
                                                     2. The negotiations between the contracting
(i) the conditions of the consideration,             authority(s) and the tenderer(s), conducted in the
    reference to the relevant rules of law;          course of a negotiated procedure without a
                                                     notice, are aimed at reaching an agreement on
(j) whether the correction of deficiencies is        the contract terms not specified in the framework
    allowed or prohibited;                           agreement and providing the contracting
                                                     authority with the opportunity to conclude the
(k) the contract evaluation criteria (Article 57);   contract with the tenderer offering the most
                                                     favourable valid offer.
(l) the tender submission deadline;
                                                                        Article 237
(m) the address the tenders are to be sent to;
                                                     1. The contracting authority shall publish
(n) the language(s) of the tender;                   information regarding the success or the failure
                                                     of the negotiated procedure without a notice in a
(o) the place and time of tender opening;            notice based on a template determined in the
                                                     relevant legislation.
(p) the persons entitled to attend the tender
    opening;                                         2. The notice shall be dispatched for
                                                     publication in the Public Procurements Bulletin
(q) the course and rules specified by the            not later than within five working days from the
    contracting authority of the negotiations, and   announcement of results, or the expiry of the
    the date and time of the first negotiation;      deadline for the announcement of results.

(r) the date and time of the announcement of         3. The notice shall be sent for publication
    the winners and the planned date of the          pursuant to Article 184 (1) not later than within
    conclusion of the contract;                      five working days from the conclusion of the
                                                     contract, or, failing this, the expiry of the
(s) the date of sending the invitation to tender.    deadline for the conclusion of the contract.

2. The assessment criterion of the tenders shall     4. The contracting authority may publish
not be different from what was specified in the      information in a notice regarding the success or
first part of the procedure.                         failure of the negotiated procedure without a
                                                     notice jointly with the information on the
                   Article 236                       contracts for procurements under the framework
                                                     agreement. In this later case, the notice on the
1. The conditions specified in the framework         contracts awarded in the previous quartile under
agreement shall not be substantially modified in     the framework agreement shall be sent within
the invitation to tender, in the tender itself or    five working days after the last day of the
during the negotiations. If the tenderer modifies    calendar quartile. A separate notice shall not be
its conditions, the modified conditions shall be     published on the not complete, first quartile
more favourable than what was offered in the         following the award of the framework
framework agreement. Such modification shall         agreement.
not entail a change in any characteristics or
circumstances of the subject or the terms of the                         Title 19
contract concluded under the scope of the



96
             Simplified procedure                     shall be applied      to   design   contests,   as
                                                      appropriate.
                   Article 238
                                                      2. The contracting authority shall publish the
1. The contracting authority may use a                design contest notice and the notice
simplified contract award procedure for the           communicating the success or failure of the
procurement of services in Annex 4 [Article 161       design contest procedure according to the
(5)].                                                 templates provided in the relevant legislation.

2. The simplified procedure shall be governed,
mutatis mutandis, by the provisions of Chapter                        PART THREE
IV Title 9 (Article 146–152), with the
differences in paragraphs (3)–(5). Within the           PROVISIONS CONCERNING PUBLIC
scope of legal services specified in Article 153          PROCUREMENTS OF A VALUE
the tenderer may also act as set out therein.         REACHING THE NATIONAL THRESHOLD

3. The contracting authority may send out                              CHAPTER VI
invitations to tender if the public, openly
available      and    exceptionally     favourable          GENERAL CONTRACT AWARD
conditions of the services are offered only for a                 PROCEDURE
short period of time and the consideration is well
below the market prices and these favourable                              Title 21
conditions would be lost through the application
of Article 147 (1). The contracting authority               Scope of application of the chapter
shall send via fax or e-mail the invitation to
tender immediately after being informed of the                       General provisions
favourable conditions to the tenderer offering the
favourable conditions and, if possible, to at least                      Article 240
two known tenderers. The contracting authority
shall retain the document offering the favourable     1. The organisations (contracting authorities)
conditions also according to Article 7 (2). Article   referred to in Article 241 shall proceed in
148 (1) shall be applied as appropriate.              accordance with this chapter if

4. For technical specifications for public            (a) the value of their public procurement of the
procurement, Articles 190–191, for abnormally             specified subject equals or exceeds the
low prices Article 196, for the validity of variant       national    value     thresholds   at    the
(alternative) offers Article 198 shall be applied,        commencement of the contract award
and Article 192 may also be applied.                      procedure, and Chapter IV does not apply;

5. The contracting authority must not conclude        (b) they are conducting a design contest (Title
a framework agreement in a simplified                     32), and its value in accordance with Article
procedure.                                                244 (2) equals or exceeds the national value
                                                          thresholds at the commencement of the
                     Title 20                             contract award procedure, and Chapter IV
                                                          does not apply.
        Rules governing design contests
                                                      2. In case of works concessions the special
                   Article 239                        rules under Title 29, and in case of service
                                                      concessions the special rules under Title 30 shall
1. If the contracting authority conducts a            also apply.
design contest, the provisions in Chapter IV Title
10 (Articles 154-160) shall be applied, as            3. In cases of services listed in Annex 4, a
appropriate, provided that Article 159 (2) shall      simplified procedure (Title 31) may be adopted.
not be applied, and for dispatching and               This procedure shall not apply to services listed
publishing notices Articles 184-187 shall be          in Annex 3. However, if the subject of public
applied. Furthermore, Articles 168, 170 and 175       procurement is a service that includes services



                                                                                                      97
from Annex 3 and Annex 4 respectively, the             the right for the use or exploitation with or
simplified procedure shall apply, provided that at     without an option to purchase real property, of a
the commencement of the contract award                 real property by the contracting authority shall
procedure the value of the service listed in           also be considered public supply.
Annex 4 exceeds the value of the service listed in
Annex 3.                                               3. To public works contracts Article 25 (1), to
                                                       construction works concessions Article 26, while
4. Chapter VII shall apply if the contract award       to service orders Article 27 shall apply. Article
procedure or the design contest is related to the      28 shall also apply.
sectors and activities identified therein, including
the exceptions set out in Chapter V.                   4. Service concession involves contracting for
                                                       services where the consideration from the
             Contracting authorities                   contracting authority comprises the transfer for a
                                                       specific period of time of the right to exploit
                   Article 241                         commercially the provision of the relevant
                                                       services or the transfer of this right together with
For the purposes of this chapter, contracting          a financial consideration.
authorities are:
                                                                           Exceptions
(a) contracting authorities defined in Article 22
    (1), except for the authorities specified in                           Article 243
    Article 22 (4);
                                                       Article 243 The procedure in accordance with
(b) in respect of public contracts to be               this Chapter shall not apply
    implemented          using       aid/support,
    organisations not falling under point a –          a)   to the exceptions listed in Article 29, subject
    except individual entrepreneur and one-man              to the terms and conditions set out therein;
    companies –, whose public contracts
    pursuant to this Chapter are subsidised from       b) to the procurement of textbooks, if it is
    budgetary sources or EU funds provided                carried out in accordance with the Act on the
    directly by one or more organisations                 Rules for the Textbook Market, in the
    specified in point a, exceeding 50% of the            framework of the supply of textbooks to
    value of the relevant contract;                       schools and the textbook is registered in the
                                                          textbook register;
(c) organisations that do not fall under point (a)
    for whose payment obligation the                   c)   to the procurement of goods and services for
    Government has provided a joint and several             the full services provided on the basis of Act
    guarantee in accordance with the Act on                 XXXI of 1997 on the protection of the child
    Public Finances, if the procurement to be               and on guardianship administration for
    carried out using funds obtained by way of a            children situated in children’s homes and
    guarantee is considered public procurement              apartment homes, for those who receive
    in accordance with this chapter, and the                post-operation treatment and for the full
    extent (or amount) of the guarantee equals or           supply of persons living in residential homes
    exceeds the national value thresholds.                  according to the provisions of Act III of
                                                            1993 on social administration and social
         Subjects of public procurement                     benefits;

                   Article 242                         d) to the acquisition of immobile property
                                                          preceding an expropriation or to the
1. The subjects of public procurement may be              exchange of immobile property, and to cases
public    supply,   public   works    contract,           when the transfer of right to the title or the
construction works concession, service contract           right to use or commercially exploit an
and service concession.                                   immobile property are provided by law in
                                                          the way of competitive dialogue,
2. Article 24 shall apply to public supplies with         competition or open tender, and to cases
the derogation that the acquisition of the title, or      when the acquisition of the immobile



98
     property is conducted through the option for      of a real property, Articles 36–37 shall apply as
     first rejection in accordance with legislation;   appropriate to establishing the estimated value.

e)   to the purchase conducted through crisis          3.
     management for humanitarian aid within
     foreign affairs assistance about which the        4. The commencement of the contract award
     competent committee of the Parliament has         procedure means the dispatch date of the notice
     made a preliminary decision excluding the         launching the contract award procedure, or the
     application of this Act.                          date when the invitations to tender are sent out in
                                                       cases of negotiated procedures without a notice
               National thresholds                     and in certain specific cases of simplified
                                                       procedures,    or    in certain cases          the
                    Article 244                        commencement date of the negotiations .

1. For the purposes of this chapter, from 2006         5. If according to 40 (2) the aggregate value of
onwards the national thresholds applicable to          the subjects of procurements whose individual
public supply, public works contracts, works           value is lower than the national value threshold
concession, contracting for services and service       requires a public procurement process in
concessions shall be determined by the annual          accordance with this chapter, then the
Act on Budget.                                         procurement in the framework of several public
                                                       procurement processes in accordance with this
2. For the purposes of this chapter (Title 32),        chapter of subjects of procurement whose value
the threshold applicable to design contests shall      has been aggregated shall not be considered
be                                                     bypassing this law.

(a) the threshold determined for contracting for       6. If the provisions of Article 40 (2) were not
    services, provided that the design contest         taken into consideration when calculating the
    procedure results in contracting for a             estimated value, then contracts for the subjects of
    service;                                           public procurement in accordance with this
                                                       chapter that are to be procured in the relevant
(b) the threshold determined for the service           fiscal year or financial year shall only be
    order in the case of each design contest           concluded following the contract award
    whose tender fees and the total fees payable       procedure in accordance with this chapter,
    to tenderers is equal to or greater than this      irrespective of their value.
    threshold.
                                                                            Title 22
3. The national thresholds are published by the
Public Procurement Council in the Public                    General rules of public procurement
Procurement Bulletin.
                                                                 Types of public procurement
           Value of public procurement
                                                                          Article 246
                    Article 245
                                                       1. The contract award procedure may be an
1. The value of public procurement shall mean          open, restricted or negotiated procedure, or a
the highest full consideration, generally              competitive dialogue. A negotiated procedure or
requested or quoted for the subject of the             a competitive dialogue can only be used if
contract award procedure for the at the                permitted by this Chapter.
commencement of the contract award procedure,
excluding value-added tax and calculated in            2. In the open and restricted procedures, the
accordance with the provisions of Articles 36–40       contracting authority is bound by the terms and
and paragraph 2 (estimated value).                     conditions specified in the notice and in the
                                                       documentation, while the tenderer is bound by its
2. If the subject of the contract is the               tender, barring the exceptions listed in Article
acquisition of a right for the use or exploitation     254. Negotiations in open and restricted




                                                                                                       99
procedures are not allowed, except for the case       (b) all service contracts (that do not fall within
described in Article 254.                                 the scope of exceptions and whose value is
                                                          equal or greater than the nation value
3. Contracting authorities may also adopt a               threshold), provided that the aggregated
framework agreement procedure (Title 28)                  estimated value (Article 245) of such service
                                                          orders is lower than the relevant Community
 4.74 The contracting authority may set up and            threshold.
operate a dynamic purchasing system, the
purpose of which is to pre-select those who are       2. The contracting authority may prepare a
entitled to participate in the procedures to be       prior information notice about the key attributes
conducted in order to realise certain public          of the planned public works contracts, provided
procurements. The detailed rules pertaining to        that the estimated value of such public works
the dynamic purchasing system shall be                contracts (Article 245) is lower than the relevant
determined in a separate act of legislation.          Community threshold. The information notice
                                                      shall be prepared as soon as possible after the
5. Changing over from one type of procedure           decision concerning the implementation of the
to another is not allowed during the contract         planned public works contracts.
award procedure.
                                                      3. The prior information notice may also be
6. If the open, restricted or negotiated              prepared either for each separate subject of the
procedure or the competitive dialogue fails, the      public procurement or comprehensively.
contracting authority shall make a decision on
issuing another invitation to tender in accordance                       Article 248
with the relevant rules applicable to the various
types of procedure, except if the contracting         1. The contracting authority may publish the
authority no longer wishes to implement the           prior information notice in an advertisement. The
public procurement.                                   advertisement must be drawn up in accordance
                                                      with the template provided for in the relevant act
7. To all other aspects of open, restricted and       of legislation. The contracting authority may
negotiated procedures and competitive dialogues       publish the advertisement containing the prior
the rules set out in Chapter IV shall apply, unless   information notice, drawn up in accordance with
otherwise provided for in this Chapter.               the standard form provided for in the relevant
                                                      legislation, on its homepage. The publication of
                                                      the advertisement on the homepage shall take
            Preliminary information                   place only after the dispatch of the advertisement
                                                      by electronic means to the Public Procurement
                   Article 247                        Council. In the event of publishing the
                                                      advertisement on the homepage, the date of
1. The contracting authority may prepare, as          publishing shall be the governing date with
soon as possible after the beginning of the           regard to the legal effects related to the
budgetary year, a prior information notice for the    advertisement.
plans for the year in question or for the next
period of no longer than twelve months:               2. The publication of the advertisment
                                                      containing the prior information notice does not
(a) all public supply (that do not fall within the    entail the obligation for conducting the
    scope of exceptions and whose value is            procedure with respect to the public procurement
    equal or greater than the nation value            specified therein, and furthermore the contracting
    threshold), provided that the aggregated          authority is also entitled to conduct procedures
    estimated value (Article 245) of such public      with respect to public procurements not
    supply is lower than the relevant                 published in such a notice.
    Community value threshold;
                                                             Sending and publication of notices

                                                                         Article 249
74
  This paragraph entered into force on 1 January
2007.


100
1. For the purposes of this chapter, the
publication of a notice means publication in the       The contracting authority may also request the
Official Journal of the Public Procurement             publication in accordance with Article 249 (1)
Council, the Public Procurement Bulletin               and related to a public procurement of its notice
(hereinafter referred to as ‘Public Procurement        to which the publication obligation laid down in
Bulletin’).75                                          this chapter does not apply. However, the
                                                       publication of such a notice does not entail the
2. The contracting authority shall send the            adoption of the procedure according to this
notice to (the Secretariat of) the Council for         Chapter.
Public Procurements as soon as possible and in                            Article 251
the most appropriate manner. In the case of an
accelerated procedure (Title 27), the notice shall     The contracting authority may publish notices in
be sent by fax or electronically.                      accordance with this Chapter [Article 249 (1)] in
                                                       other ways, but may only do so following the
3. The Public Procurement Council shall                publication of such a notice by the Council for
publish the notice within twelve days following        Public Procurements. The notice thus published
its dispatch; in A case of accelerated procedure,      must not contain other data than those published
or if the notice has been dispatched electronically    in the Public Procurement Bulletin, and
in the manner set forth in the relevant legislation,   furthermore it must state the date of its dispatch
it will be published within five days.                 to the Public Procurement Council.

4. The contracting authority must have proof                                Title 23
for the date of dispatch.
                                                                       Open procedure
5. The (Secretariat of the) Public Procurement
Council shall examine the notice to ensure that it                      Applicable rules
complies with the legislation applicable to public
contract award procedures. For editing                                    Article 252
advertisements, a fee – the amount of which is
specified in the relevant act of legislation – shall   To open procedures the rules set out in Chapter
be paid.                                               IV, Title 3 (Articles 48–99) shall apply as
                                                       appropriate, in accordance with the provisions of
6. The notices shall be published in their             Title 23.
entirety.
                                                                          Article 253
7. A summary of the notice or the key aspects
thereof may also be published in a foreign             1. Article 48 (2)–(3) shall apply to the
language, stipulating that only the text drawn up      publication of the tender notice with the
and dispatched in the language chosen by the           derogation that if the contracting authority or the
contracting authority (original language) shall be     organisation identified in Article 241 (b) has
considered authentic.                                  submitted, or will submit, an application (tender)
                                                       for aid/support, it may publish the relevant
8. The costs of publishing notices in the Public       tender notice. This circumstance and the
Procurement Bulletin shall be borne by their           provisions of Article 48 (3) must be
dispatchers.                                           communicated to the tenderers in the tender
                                                       notice (under “Other information”).
9. The detailed rules applicable to sending and
publishing notices and the templates of various        2.
notices are determined in the relevant legislation.
                                                       3. Pursuant to Article 86 (6), the Public
                   Article 250                         Procurement Council must be notified of any
                                                       abnormally low tenders declared invalid.
75
  This clause entered into force on 11 January
2007.                                                  4. Article 98 (3) shall not apply to the
                                                       publication of the notice communicating the
                                                       success or failure of the procedure.



                                                                                                     101
                                                       to submit a new tender within a given time limit,
                   Article 254                         without negotiations.

1. Following the tender evaluation in                  4. At the same time when such invitation is
accordance with Article 81 (4), the contracting        dispatched, all tenderers must be notified in
authority may initiate negotiations if                 writing of the fact that the contracting authority
                                                       has initiated negotiations (a new invitation to
(a) none of the tenderers, or not even the             tender).
    tenderer having submitted the most
    advantageous tender on the whole has               5. The purpose of the negotiations or the new
    submitted a tender acceptable considering          invitation to tender can only be to modify the
    the financial means available to the               tender. Tenderers can only submit tenders
    contracting authority, or                          quoting a lower consideration than the original
                                                       tenders. If the invited tenderer does not submit
(b) based on the evaluation carried out in             another tender, the original tender shall be
    accordance with the assessment criterion in        considered valid. To all other aspects of the
    accordance with Article 57 (2) (b), the best       negotiations, the provisions of Article 128 shall
    tender quotes a higher consideration than the      apply as appropriate.
    next, maximum of two, tenders.
                                                       6. The contract shall be awarded to the tenderer
(c) the evaluation criteria of tenders is the          who has submitted the most advantageous valid
    lowest price, and two or more admissible           tender to the contracting authority according to
    tenders quote identical prices as the lowest       the original assessment criterion in the course of
    price;                                             the negotiations, or based on the new or the
                                                       original tender. Articles 86–88 and 92 shall
(d) the evaluation criteria of tenders are the         apply as appropriate.
    economically most advantageous, and the
    most economically advantageous tender              7. In its written summary of the tender
    cannot be selected by applying Article 90          evaluation [Article 93 (2)], and in its notice
    (2).                                               containing the information concerning the
                                                       outcome of the procedure, the contracting
2. If the contracting authority initiates              authority must also provide information about
negotiations, the tenderers having submitted the       having initiated negotiations, and the outcome of
three most advantageous tenders shall be invited       such negotiations.
to negotiate. If less than three tenderers have
submitted valid tenders, then both tenderers, or
the only tenderer, having submitted valid tenders                          Title 24
or a valid tender, shall be invited to negotiate.
Tenderers submitting admissible tenders quoting             General rules applicable to two-stage
identical prices as the lowest price as specified in                    procedures
paragraph 1 (c), and tenderers submitting
admissible tenders with the identical total                            Applicable rules
aggregated scores as specified in paragraph 1 (d)
shall be invited for negotiation.                                         Article 255

3. All invitations to the negotiations must be         1. Tow-stage procedures are the restricted
sent to the relevant tenderers at the same time,       procedures and negotiated procedures launched
directly and in writing. In the invitation the         by the publication of a notice.
contracting authority must state the reason for
having initiated the negotiations, the procedure       2. To two-stage procedures the rules of
for conducting the negotiations and its                Chapter IV, Title 4 (Articles 100–121) shall
fundamental rules set out by the contracting           apply as appropriate, in accordance with the
authority as well as the first date and timing of      provisions of Title 24. Article 253 (1) shall
the negotiations. In this invitation the contracting   apply, except that tender notice shall be replaced
authority may also invite the relevant tenderers       by invitation to participate.




102
3.                                                  1. To negotiated procedures commencing with
                                                    the publication of a notice the rules set forth in
4. The contracting authority shall publish the      Chapter IV, Title 6 [Article 124, Articles 126-
successful or unsuccessful outcome of the           130, including Article 41 (5)], while to
participation stage in a notice drawn up in         negotiated procedures without the prior
accordance with the template provided in the        publication of a tender notice the rules set out in
relevant legislation specified in a specific law.   Chapter IV, Title 6 [Articles 125–128, Articles
The notice must be dispatched within five           131–135 and Article 41 (5)] shall apply as
working days following the announcement of the      appropriate, in accordance with the provisions of
results or the expiry of the time-limit for         Title 26.
announcement of the results. Article 118 (2)–(3)
shall not apply.                                    2. The contracting authority may adopt a
                                                    negotiated procedure without the prior
                    Title 25                        publication of a tender notice in cases other than
                                                    those identified in Article 125 if
             Restricted procedure
                                                    (a) the purpose of the public procurement is to
                Applicable rules                        acquire the title or the right to use or
                                                        commercially exploit a real property;
                  Article 256
                                                    (b)76
1. In respect of restricted procedure, the rules
set out in Chapter IV, Title 5 [Articles 122–213,   (c) the procurement is public, openly accessible
including Article 41 (5)] shall apply as                and the exceptionally favourable conditions
appropriate, in accordance with the provisions of       of the procurement are offered for only a
Title 25.                                               short period of time and the consideration is
                                                        well below the market prices, and these
2.                                                      favourable conditions would be lost in
                                                        another type of procedure.
3. Negotiations in the tendering stage of a
restricted procedure may be initiated in            3. In a negotiated procedure without the
accordance with Article 254. Article 253 (3)-(4)    publication of a notice in accordance with
shall also apply.                                   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
                   Title 25/A                       accomplishing the objective of the public
                                                    procurement. The Arbitration Committee of
        COMPETITIVE DIALOGUE                        Public Procurements shall be notified in
                                                    accordance with Article 129. The contracting
                 Article 256/A                      authority may adopt a negotiated procedure with
                                                    the prior publication of a tender notice,
Article 256/A The provisions of Chapter IV Title    according to the rules applicable to such
5/A shall apply for the competitive dialogue with   procedures.
the exception that for dispatching and publishing
notices the provisions of Articles 249-251 shall    4. According to the provisions set out in
be applied as appropriate.                          Article 125 (2) (a) applicable to negotiated
                                                    procedures, the Public Procurement Council
                                                    shall be informed. In the event of negotiated
                    Title 26                        procedures Article 253 (1) and (3)-(4) shall also
                                                    apply as appropriate.
             Negotiated procedure
                                                    5. In a negotiated procedure without the prior
                Applicable rules                    publication of a tender notice specified in
                                                    paragraph 2 (c) the contracting authority shall
                  Article 257
                                                    76
                                                         Not in effect from 11 January 2007.


                                                                                                  103
send by fax or by electronic means an invitation
to tender immediately after being informed of the        Special rules pertaining to public works
favourable conditions to the tenderer offering the                      concession
favourable conditions and if possible to at least
two other known tenderers. The negotiations                           Applicable rules
shall be conducted and the contract with the
winner, in spite of the prescriptions of Article 99                      Article 265
(2) shall be concluded in writing during the
validity of the favourable conditions. Contracting    1. To construction works concession, the rules
authorities shall retain the documents offering       set out in Chapter IV (Title 8) shall apply as
the favourable conditions as set out in Article 7     appropriate, in accordance with the provisions of
(2).                                                  Title 29.

                     Title 27                         2. Article 141 (b) specifying the time limit to
                                                      submit tenders (in open procedures) and
             Accelerated procedure                    specifying the time limit for participation shall
                                                      be applied with the exception, that the time limit
                 Applicable rules                     to submit tenders (in open or restricted
                                                      procedures) may be reduced by a further five
                   Article 258                        days, provided that the contracting authority
                                                      offers free-of-charge and full direct access by
1. To accelerated procedures the rules set out        electronic means to the tender specifications for
in Chapter IV, Title 7 (Article 136) shall apply as   the tenderers from the date of publishing the
appropriate, in accordance with the provisions of     tender notice in the case of open procedures, and
Title 27.                                             from the date of dispatching the invitation to
                                                      tender in the case of restricted procedures, and
2. The contracting authority may adopt an             specifies in text of the tender notice or in the
accelerated procedure in a restricted procedure or    invitation to tender the internet address at which
a negotiated procedure launched with the              this documentation is available.
publication of a tender notice if the time limits
fixed for such procedures [Article 107 (1),           3. The stipulations of Articles 143-144 shall
Article 122] cannot be complied with due to           not be applicable to works concessions equalling
extraordinary urgency. The contracting authority      or exceeding the national threshold instead of the
shall give the reasons for applying the               Community threshold, either. Article 140 (5)
accelerated procedure in the notice launching the     shall not apply.
procedure.
                                                      4. In the case of a construction works
                     Title 28                         concession, Article 253 (1), (3)–(4) and Article
                                                      255 (4) shall also apply, and Article 254 may be
      Framework agreement procedure                   applied. A framework agreement procedure may
                                                      also be adopted.
         The two stages of the procedure
                                                                          Title 30
                   Article 259
                                                           Special rules for service concessions
The provisions of Chapter IV Title 7/A shall be
applied for the framework agreement with the                          Applicable rules
exception that the provisions of Articles 249-251
shall be applied, as appropriate for dispatching                         Article 266
and publishing notices.
                                                      In case of service concessions awarded for
             Other applicable rules                   services specified in Annex 3 and Annex 4 the
                                                      rules set forth in Chapter IV and Titles 23-26
                 Article 260-264                      shall apply as appropriate, according to the
                                                      provisions of Title 30.
                     Title 29



104
                   Article 267                         relevant legislation. This notice must be
                                                       published within five working days following the
1. The contracting authority shall specify in the      announcement of the results or the expiry of the
notice starting the procedure the type of public       time-limit for the announcement of the tender
contract award procedure applied. The notice           results. The publication of such notices means
shall be drawn up according to the rules               the publication as defined in Article 249 (1).
applicable to the tender notice or the invitation to
participate, applied as appropriate to the relevant                       Article 269
procedure. An accelerated or framework
procedure may also be applied.                         1. Within the scope of legal services specified
                                                       in Article 153 the tenderer may also act as set out
2. The contracting authority may adopt a               therein, save for the derogation according to
negotiated procedure launched by the publication       paragraph 2.
of a notice other than specified in Article 124
(2). The contracting authority shall adopt a           2. The contracting authority shall publish an
negotiated procedure without a notice only             information notice about the conclusion of the
pursuant to Article 125 (1), (2) (a)-(b) or 3 (a).     contract, drawn up according to the template
                                                       provided in the relevant legislation. The notice
(3)                                                    shall be dispatched within five working days
                                                       following the conclusion of the contract.
4. If the service concession also falls under the      Publication of the notice shall be interpreted as
scope of the Concession Act, the contracting           defined in Article 249 (1).
authority shall act in accordance with the
Concession Act, and shall in addition                                       Title 32
immediately notify the Council for Public
Procurement thereof in writing.                              Rules applicable to design contests

5. If the service concession also falls under the                       Applicable rules
scope of the Act on scheduled passenger
transport by means of buses, the contracting                              Article 270
authority shall act accordingly, and shall
immediately notify the Public Procurement              1. If the contracting authority is conducting a
Council thereof in writing.                            design contest procedure, then it shall proceed in
                                                       accordance with the provisions of Chapter IV,
                     Title 31                          Title 10 (Articles 154–160), with derogations
                                                       pursuant to paragraphs 2–3.
              Simplified procedure
                                                       2. For the sending and publication of notices
                 Applicable rules                      the provisions of Articles 249-251 shall apply as
                                                       appropriate. The notices must be drawn up in
                   Article 268                         accordance with the template provided in the
                                                       relevant legislation.
1. In case of ordering services listed in Annex
4 [Article 240 (3)], the contracting authority may     3. To design contest procedures Article 245
adopt a simplified contract award procedure in         shall also apply as appropriate.
accordance with Chapter IV, Title 9 (Articles
145–153), with derogations pursuant to                                  CHAPTER VII
paragraphs 2–3.
                                                            SPECIAL CONTRACT AWARD
2. Pursuant to Article 86 (6), the Public               PROCEDURE APPLICABLE TO CERTAIN
Procurement Council must be notified of any              ORGANISATIONS OPERATING IN THE
abnormally low tenders declared invalid.                 WATER, ENERGY, TRANSPORT AND
                                                          TELECOMMUNICATION SECTORS
3. The contracting authority must publish a
notice about the outcome of the procedure in                                Title 33
accordance with the template provided in the



                                                                                                     105
      Scope of application of the chapter              5. In cases of services identified in Annex 4, a
                                                       simplified procedure (Title 41) may be adopted.
               General provisions                      This procedure shall not be adopted to services
                                                       listed in Annex 3. However, if the subject of
                   Article 271                         public procurement is a service that includes a
                                                       service from both Annex 3 and Annex 4
1. The organisations identified in Article 162         respectively, a simplified procedure shall be
(contracting authorities) shall proceed according      adopted, provided that at the commencement of
to this Chapter if                                     the public contract award procedure the value of
                                                       the service listed in Annex 4 does not exceed the
(a) the value of their public procurements of the      value of the service listed in Annex 3.
    specified subject-matter equals or exceeds
    the national threshold at the commencement         6. In procedures described in this chapter, the
    of the public contract award procedure, and        rules set out in Chapter V, including the
    Chapter V is not applicable;                       exceptions specified in Chapter V, shall apply as
                                                       appropriate, in accordance with the provisions of
(b) they are conducting a design contest (Title        Chapter VII.
    42) whose value according to Article 273 (2)
    equals or exceeds the national thresholds at                         Article 272
    the commencement of the procedure, and
    Chapter V is not applicable.                                     National thresholds

2. This Chapter shall apply, when the subject-                           Article 273
matter of the public procurement is related to one
or more activities - specified in Article 163 - of     1. For the purposes of this chapter, from 2006
the contracting authority and also to other            onwards the national value thresholds applicable
activities, but the subject-matter of the public       to public supply, public works contracts,
procurement is required primarily for providing        construction works concession and service
activities specified in Article 163.                   contracts shall be determined by the annual Act
                                                       on Budget.
3. Chapter VI shall apply, when the subject of
the public procurement is related to one or more       2. For the purposes of this chapter (Title 42),
activities - specified in Article 163 - of the         the threshold applicable to design contests shall
contracting authority and also to other activities,    be
and it cannot be established for the provision of
which activity the public procurement is required      (a) the value threshold determined for the
primarily, or the subject-matter of the public             service order, provided that the design
procurement cannot be divided by its nature, or            contest procedure results in ordering a
in the event of dividing it into parts it cannot be        service;
used properly, provided that the contracting
authority is regarded as a contracting authority in    (b) the value threshold determined for the
accordance with Article 162 (1) (a) as well.               service order in the case of every design
                                                           contest whose tender fees and the total fees
4. This Chapter shall apply as well, when the              payable to tenderers equals or exceeds this
subject-matter of the public procurement is                value threshold.
related to one or more activities - specified in
Article 163 - of the contracting authority and         3. The national value thresholds are published
also with other activities not under the provisions    by the Public Procurement Council in the Public
of Chapter VI, and it cannot be established for        Procurement Bulletin.
the provision of which activity the public
procurement is required, or the subject-matter of
the public procurement cannot be divided by its                  Value of public procurement
nature, or in the event of dividing it into parts it
cannot be used properly.                                                 Article 274




106
1. To the value of the public procurement             restricted or negotiated procedure launched by
(estimated value), Article 179 (1)–(3) shall          prequalification notice.
apply.
                                                      4. The contracting authorities may also adopt a
2. If according to 40 (2) the aggregated value        framework agreement procedure (Title 40).
of the subjects of procurement whose individual
value is lower than the national value threshold      5.77 The contracting authority may set up and
requires a public procurement process in              operate a dynamic purchasing system, the
accordance with this chapter, then the                purpose of which is to pre-select those who are
procurement in the framework of several public        entitled to participate in the procedures to be
procurement processes in accordance with this         conducted in order to realise certain public
chapter of subjects of procurement whose value        procurements. The detailed rules pertaining to
has been aggregated shall not be considered           the dynamic purchasing system shall be
bypassing of this law.                                determined in a separate act of legislation.

3. If the provisions of Article 40 (2) were not                    Notification in advance
taken into consideration when calculating the
estimated value, then contracts for the subjects of                      Article 276
public procurement in accordance with this
chapter that are to be procured in the relevant       1. The contracting authority may prepare, as
fiscal year or in the relevant twelve months shall    soon as possible after the beginning of the
only be concluded following the contract award        budgetary year, a periodic indicative information
procedure in accordance with this chapter,            notice for the next period of no longer than
irrespective of their value.                          twelve months:

                     Title 34                         (a) all public supplies (that do not fall within the
                                                          scope of exceptions and whose value equals
   General rules of special contract award                or exceeds the nation value threshold),
                 procedure                                provided that the aggregated estimated value
                                                          (Article 274) of such public supplies is
          Types of public procurement                     lower than the relevant Community value
                                                          threshold;
                   Article 275
                                                      (b) all service orders (that do not fall within the
1. The contract award procedure may be an                 scope of exceptions and whose value is
open, restricted or negotiated procedure.                 equal or greater than the nation value
Negotiated procedure without the prior                    threshold), provided that the aggregated
publication of a tender notice can only be                estimated value (Article 274) of such service
adopted in special cases.                                 orders is lower than the relevant Community
                                                          value threshold.
2. In the open and restricted procedures, the
contracting authority is bound by the terms and       2. The contracting authority may prepare an
conditions specified in the notice and in the         indicative summary information notice about the
tender specifications, while tenderers are bound      key attributes of the envisaged public works
by their tender. Negotiations in open and             contracts, provided that the estimated value
restricted procedures are not allowed. The case       (Article 274) of such public works contracts is
described in Article 283 in an open procedure         lower than the relevant Community value
forms an exception from this rule.                    threshold. The information notice shall be
                                                      prepared as soon as possible after the decision
3. According to the type of the notice, the           concerning the implementation of the planned
contract award procedure may be an open               public works contracts.
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      77
                                                        This provision entered into force on 1 January
periodic indicative information notice, or a          2007.


                                                                                                     107
3. The information notice may also be prepared        relevant legislation, or within five days in
separately for each subject of the public             exceptional cases at the request of the
procurement or comprehensively.                       contracting authority if the tender notice or
                                                      invitation to participation (Article 189 and
                   Article 277                        Article 202) is dispatched by fax .

1. The contracting authority may publish the          4. The contracting authority must have proof
indicative summary information notice in a            for the dispatch date.
notice. The notice must be prepared in
accordance with the template provided in the          5. The (Secretariat of the) Public Procurement
relevant legislation, and must be dispatched by       Council shall examine the notice sent by the
the expiry of the time-limit specified in Article     contracting authority to ensure that it complies
276 (1) and (2). The contracting authority may        with the legislation applicable to public
publish the indicative consolidated information       procurement. For editing advertisements a fee -
advertisement on its homepage; and shall              the amount of which is specified in a separate act
immediately notify the Public Procurement             of legislation - shall be paid.
Council thereof. The publication of the
advertisement on the homepage shall take place        6. The notices shall be published in their
only after the dispatch of the notice to the Public   entirety.
Procurement Council. The advertisement must
be drawn up in accordance with the template           7. A summary of the notice or the key aspects
provided in the relevant legislation.                 thereof may also be published in a foreign
                                                      language, stipulating that only the text prepared
2. The publication of the notice containing the       and sent in the language chosen by the
indicative summary information notice does not        contracting authority (original language) shall be
entail the obligation for conducting the              considered authentic.
procedure with respect to the public procurement
specified therein, and furthermore the contracting    8. The costs of publishing notices in the Public
authority is also entitled to conduct procedures      Procurement Bulletin shall be borne by their
with respect to public procurements not               dispatchers.
published in such a notice.
                                                      9. The detailed rules applicable to sending and
       Sending and publication of notices             publishing notices are set forth and the templates
                                                      for the various notices are provided in the
                   Article 278                        relevant legislation.

1. For the purposes of this chapter, the                                 Article 279
publication of a notice shall mean publication in
the Official Journal of the Public Procurement        The contracting authority may also request the
Council, the Public Procurement Bulletin              publication of its notice in accordance with
(hereinafter referred to as ‘Public Procurement       Article 278 (1) and related to a public
Bulletin’).78                                         procurement to which the publication obligation
                                                      laid down in this chapter does not apply.
2. The contracting authority shall send the           However, the publication of such a notice does
notice to (the Secretariat of) the Public             not entail the adopting of the procedure
Procurement Council as soon as possible and in        according to this chapter.
the most appropriate manner.
                                                                         Article 280
3. The Public Procurement Council shall
publish the notice within twelve days following       The contracting authority may publish notices in
its dispatch; in case the notice is sent              accordance with this Chapter (Article 278 (1))
electronically in the manner specified in the         elsewhere, but can only do so following the
                                                      publication of such a notice by the Public
78
  This clause entered into force on 11 January        Procurement Council. The notice thus published
2007.                                                 must not contain other data than those published
                                                      in the Public Procurement Bulletin, and



108
furthermore it must state its dispatch date to the   (d) the evaluation criteria of tenders is the most
Public Procurement Council.                              economically advantageous, and the
                                                         economically most advantageous tender
                    Title 35                             cannot be selected by applying Article 90
                                                         (2).
                Open procedure
                                                     2. If the contracting authority initiates
                Applicable rules                     negotiations, the tenderers having submitted the
                                                     first three best tenders shall be invited to
                   Article 281                       negotiate. If less than three tenderers have
                                                     submitted valid tenders, then both tenderers, or
To open procedures the rules set out in Chapter      the only tenderer, having submitted valid tenders
V, Title 13 (Articles 188–200) shall apply as        shall be invited to negotiate. Tenderers
appropriate, in accordance with the provisions of    submitting admissible tenders quoting identical
Title 35.                                            prices as the lowest price as specified in
                   Article 282                       paragraph 1 (c), and tenderers submitting
                                                     admissible tenders with identical total aggregated
1. Article 195 shall apply for specifying the        scores as specified in paragraph 1 (d) shall be
time limit to submit tenders, as appropriate.        invited for negotiation.

2. The Public Procurement Council must be            3. All invitations to the negotiations must be
notified of any abnormally low tenders declared      sent to the relevant tenderers simultaneously,
invalid [Article 196 and 86 (6)].                    directly and in writing. In the invitation the
                                                     contracting authority must state the reason for
3. Article 200 (3) shall not apply to the            having initiated negotiations, the procedure for
publication  of  the   information    notice         conducting the negotiations and its rules set out
communicating the success or failure of the          by the contracting authority as well as the first
procedure.                                           date and timing of the negotiations. In this
                                                     invitation the contracting authority may also
                   Article 283                       invite the relevant tenderers to submit new
                                                     tenders within a specified time limit, without
1. Following the tender evaluation in                negotiations.
accordance with Article 81 (4), the contracting
authority may initiate negotiations if               4. At the same time when such invitation is
                                                     sent, all tenderers must be notified
(a) none of the tenderers, or not even the           simultaneously in writing of the fact that the
    tenderer having submitted the most               contracting authority has initiated negotiations (a
    favourable tender on the whole has               new invitation to tender).
    submitted a tender acceptable considering
    the financial means available to the             5. The purpose of the negotiations or the new
    contracting authority, or                        invitation to tender can only be to modify the
                                                     tenders. The tenderer may only submit a tender
(b) based on the evaluation carried out in           which is more favourable to the contracting
    accordance with the assessment criterion in      authority in terms of consideration than that
    accordance with Article 57 (2) (b), the best     quoted in the original tender. If the invited
    tender quotes a higher consideration than the    tenderer does not submit another tender, the
    maximum two second best tenders,                 original tender shall be considered valid. To all
    including the scenario outlined in Article       other aspects of the negotiations, the provisions
    199.                                             of Article 128 shall apply as appropriate.

(c) the evaluation criteria of tenders is the        6. The contract shall be awarded to the tenderer
    lowest price, and two or more admissible         who has submitted the most advantageous valid
    tenders quote identical prices as the lowest     tender to the contracting authority according to
    price;                                           the original assessment criterion in the course of
                                                     the negotiations, or based on the new or the




                                                                                                   109
original tender. Articles 87–88,192,      196–197     provisions of Title 37. Article 282 (2) and (3)
and 199 shall apply.                                  shall also apply.79

7. In its written summary of the tender               2. The contracting authority may employ a
evaluation (Article 93 (2)), and in its information   restricted or negotiated procedure published in a
notice concerning the success or failure of the       notice containing a periodical preliminary
procedure, the contracting authority must also        information package according to this chapter if
provide information about having initiated            the estimated value of the planned public
negotiations as well as about the outcome of          procurement(s) published in the notice is lower
such negotiations.                                    than the Community value thresholds, also
                                                      observing to the provisions of Article 37.
                     Title 36
                                                      3. The contracting authority shall publish the
    Restricted and negotiated procedures              outcome of the participation stage in a notice
launched by a notice containing an invitation         drawn up in accordance with the template
                to participate                        provided in the relevant legislation. The notice
                                                      must be dispatched within five working days
                 Applicable rules                     following the announcement of the results or the
                                                      expiry of the deadline for announcement of the
                   Article 284                        results. Article 118 (2)–(3) shall not apply.

1. To restricted and negotiated procedures                                   Title 38
launched by a notice containing an invitation to
participate the rules of Chapter V, Title 14                Restricted and negotiated procedures
(Articles 201–206) shall apply as appropriate, in           announced in a prequalification notice
accordance with the provisions of Title 36.
Article 282 (2) and (3) shall also apply.                               Applicable rules

2.                                                                         Article 286

3. The contracting authority shall publish the        1. To restricted and negotiated procedures
outcome of the participation stage in a notice        announced in a prequalification notice, the rules
drawn up in accordance with the template              set out in Chapter V, Title 16 (Articles 213–224)
provided in the relevant legislation. The notice      shall apply as appropriate, in accordance with the
must be dispatched within five working days           provisions of Title 38 Article 282 (2) and (3)
following the announcement of the results or the      shall also apply.80
expiry of the time-limit for announcement of the
results. Article 118 (2)–(3) shall not apply.         2. The contracting authority may employ a
                                                      restricted and negotiated procedure published in
4.                                                    a prequalification notice according to this
                                                      chapter if the estimated value of the public
                     Title 37                         procurements envisaged for the relevant period is
                                                      lower than the Community value thresholds, also
    Restricted and negotiated procedures              observing to the provisions of Article 37.
announced in a notice containing an indicative
         periodic information notice                  3. If the contracting authority also operates a
                                                      prequalification system in accordance with
                 Applicable rules                     Chapter V and this Chapter, then it must keep a
                                                      separate list of the pre-qualified applicants.
                   Article 285
                                                      4. The contracting authority shall publish the
1. To restricted and negotiated procedure             outcome of the participation stage in a notice
announced in a notice containing an indicative
periodic information notice, the rules set out in     79
                                                           In effect from 11 January 2007.
Chapter V, Title 15 (Articles 207–212) shall          80
                                                           In effect from 11 January 2007.
apply as appropriate, in accordance with the



110
drawn up in accordance with the template              of     implementing     the    relevant    public
provided in the relevant legislation. The notice      procurement. To this second stage of the
must be dispatched within five working days           procedure, the rules set out in Article 226 shall
following the announcement of the results or the      apply as appropriate, in accordance with the
expiry of the deadline for the announcement of        provisions of Title 18 and 39. Article 237 (3)
the results. Article 118 (2)-(3) shall not apply.     shall not apply.

                                                                          Title 41
                     Title 39
                                                                   Simplified procedure
   Negotiated procedure without the prior
       publication of a tender notice                                 Applicable rules

                 Applicable rules                                        Article 289

                   Article 287                        1. In the case of ordering services listed in
                                                      Annex 4 (Article 271 (2)), the contracting
1. To negotiated procedures without a notice,         authority may employ a simplified contract
the rules set out in Chapter V, Title 17 (Articles    award procedure in accordance with Chapter V,
225–231) shall apply as appropriate, in               Title 19 (Article 238), with derogations pursuant
accordance with the provisions of Title 38.           to paragraphs 2–3.
Article 282 (2) and (3) shall also apply.
                                                      2. The Public Procurement Council must be
2. To the employment of a negotiated                  notified of any abnormally low tenders declared
procedure without the prior publication of a          invalid [Article 196 and 86 (6)].
tender notice, Article 225 shall apply as
appropriate. The contract award procedures            3. The contracting authority must publish a
referred to in Article 225 shall mean the             notice about the outcome of the procedure in a
procedures described in this chapter.                 notice drawn up in accordance with the template
                                                      provided in the relevant legislation. This notice
                     Title 40                         must be published within five working days
                                                      following the announcement of the results or the
      Framework agreement procedure                   expiry of time-limit for the announcement of the
                                                      results. The publication of such notices means
                 Applicable rules                     the publication as defined in Article 278 (1).

                   Article 288                                           Article 290

1. To framework agreement procedures, the             1. Within the scope of legal services specified
rules set out in Chapter V, Title 18 (Articles        in article 153, the contracting authority may also
232–237) shall apply as appropriate, in               act as set out therein, save the derogation
accordance with the provisions of Title 40.           according to paragraph 2

2. The framework agreement procedure is               2. The contracting authority shall draw up and
comprised of two stages. In the first stage, the      publish the notice communicating the conclusion
contracting authority (contracting authorities)       of the contract according to the template
must adopt an open procedure in accordance            provided in the relevant legislation. The notice
with Title 35 or any restricted or negotiated         shall be dispatched within five working days
procedures specified in Titles 36-38, with a view     from the conclusion of the contract. The
to concluding a framework agreement.                  publication of the notice shall mean the
                                                      publication according to Article 278 (1).
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                              Title 42
tender notice (Article 225 (1) (d)) for the purpose



                                                                                                   111
      Rules applicable to design contests            2. The organisations referred to in Article 294
                                                     shall also proceed in accordance with this
                Applicable rules                     Chapter if the value of their public procurements
                                                     of the specific subject equals or exceeds the
                   Article 291                       national value thresholds at the launch of the
                                                     contract award procedure, and Chapter IV or VI
1. If the contracting authority is conducting a      does not apply.
design contest procedure, then it shall proceed in
accordance with the provisions of Chapter IV,                     Contracting authorities
Title 10 (Articles 154–160), with derogations
pursuant to paragraphs 2–3. Additionally                                Article 293
Articles 168 and 175 and Article 272 (3) shall
also apply to design contests as appropriate.        For the purposes of this chapter, contracting
                                                     authorities are:
2. Notices shall be sent and published in
accordance with the provisions of Articles 278-      (a) contracting authorities defined in Article 22
280 as appropriate. Notices shall be drawn up in         (1), except those defined in Article 22 (4);
accordance with the template provided in the
relevant legislation.                                (b) in respect of public works to be
                                                         implemented           using      aid/support,
3. In the case of a design contest, Article 274          organisations not under the scope of point
shall also apply as appropriate.                         (a) – except individual entrepreneurs and
                                                         companies of self-employed – whose public
                 PART FOUR                               works specified in this part are subsidised
                                                         directly by one or more organisations
 PROVISIONS APPLICABLE TO PUBLIC                         specified in point (a) from budgetary sources
PROCUREMENT BELOW THE NATIONAL                           or EU funds, exceeding 50% of the value of
        VALUE THRESHOLD                                  the relevant contract.

                    Title 43                                                 Article 294

       Scope of application of Part Four             1. For the purposes of this Part, the contracting
                                                     authority is an organisation that does not belong
               General provisions                    to the scope of Article 22 (1), Article 162 (2) and
                                                     Article 272 (2), and pursues an activity aimed at
                   Article 292                       providing a service pursuant to a special or
                                                     exclusive right granted by any organisation
1. The organisations (contracting authorities)       defined in Article 22 (1), provided that its public
referred to in Article 293 shall proceed in          purchasing is directly related to pursuing this
accordance with this Part if                         activity.

(a) the value of their public procurement of the     2. The public procurement pursued by the
    specific subject at the launch of the contract   contracting authority is directly related to the
    award procedure equals or exceeds the value      activity defined in paragraph 1 if the above
    thresholds    set     for    regular    public   activity cannot be pursued without the subject-
    procurement, and Chapter IV or VI does not       matter of the public procurement. If the subject-
    apply;                                           matter of the public procurement is used by the
                                                     contracting authority for the above activity as
(b) they are conducting a design contest (Title      well as for its other activities and it cannot be
    45), and at the launch of the process its        physically divided, or cannot be used properly if
    value in accordance with Article 297 (2) is      divided, then the contracting authority shall
    equal to or greater than the value thresholds    adopt the procedure set forth in this Part.
    set for the regular design contest procedure,
    and Chapter IV or VI does not apply.             3. When granting a special or exclusive right,
                                                     provisions must be made concerning the




112
procedural obligations pursuant to this chapter,              contracts or service; however, the estimated
including the provisions of Article 1.                        value of the contract(s) concluded for such
                                                              additional public works contracts or service
         Subjects of public procurement                       with the tenderer who was awarded the
                                                              original contract must not be higher than
                   Article 295                                50% of the value of the original public
                                                              works contracts or service;
1. The subject of public procurement may be
public supplies, public works contract, and           (e) in case of public supplies, if replacing the
service orders.                                           contractor who was awarded the original
                                                          contract with a new contractor for the partial
2. To supplies Article 24, to public works                replacement or enhancement of the
contracts Article 25 (1), and to service orders           originally procured item would require the
Article 27 shall apply. Article 28 shall also be          procurement of items which are technically
applied.                                                  different and not compatible, or such a
                                                          procurement      would     result     in     a
                   Exceptions                             disproportionate technical difficulty in the
                                                          operation and maintenance; however, the
                   Article 296                            aggregated term of contract(s) concluded
                                                          with the contractor who was awarded the
The procedure pursuant to this Part shall not             original contract must not exceed three
apply to                                                  years;

(a) exceptions set out in Article 29, stipulating     (f) in case of service orders, if it takes place
    that the those set out in Article 29 (1) (a) do       following a regular design contest as
    not require a preliminary decision;                   described in this Part, and the contracting
                                                          authority must conclude a contract with the
(b) if only a particular organisation or person is        selected winner;
    capable of concluding the contract due to
    certain     technical     features,    artistic   (g) in case of purchasing a service listed in
    considerations or the protection of exclusive         Annex IV;
    rights;
                                                      (h) in case of purchasing a service aimed at the
(c) if the simplified procedure cannot be                 creation of a literary (technical, scientific)
    conducted due to an extraordinary urgency             work, or involving consulting or personal
    arising due to a reason unforeseeable by the          interpreting activity for the conclusion of the
    contracting authority, but the circumstances          contracting authority’s core activity;
    justifying such extraordinary urgency must
    not arise from the fault of the contracting       (i) in case of ordering a services specified in
    authority;                                            Article 153;

(d) in the case of public works contracts or          (j)81       in case of the exception specified in
    service orders if the completion of the                   Article 243 (b);
    relevant public works contracts or service
    requires additional public works contracts or     (k)82    in case of the procurement of goods or
    service orders not included in the original            services as set out in Article 243 (c);
    contract and arisen due to unforeseeable
    circumstances, provided that, due to              (l) the procurement is public, openly accessible
    technical or economic considerations, such            and the exceptionally favourable conditions
    additional public works contracts or service          of the procurement are offered for only a
    cannot be separated from the original                 short period of time and the consideration is
    contract without causing considerable                 well below the market prices, and these
    difficulties to the contracting authority, or         favourable conditions would be lost in the
    the additional public works contracts or
    service can be separated, but it is essential     81
                                                           In effect from 11 January 2007.
    for the completion of the public works            82
                                                           In effect from 11 January 2007.


                                                                                                     113
    procedure specified in Article 299 and            more than one contract award procedure
    Article 300.                                      according to this Chapter shall not be considered
                                                      bypassing this law.

                Value thresholds                                           Title 44

                   Article 297                          Regular public contract award procedure

1. For the purposes of this Part, from 2006                              Article 299
onwards the national value thresholds applicable
to public supplies, public works contracts, public    1. In a regular public contract award procedure
works concessions and service contracts shall be      the contracting authority must
determined by the annual Act on Budget.
                                                      (a) publish the invitation to tender in a notice in
2. For the purposes of this Part (Title 45), the          the Public Procurement Bulletin (Article
value threshold applicable to regular design              249) if the value of its public procurements
contest shall be                                          under this Part equals or exceeds 50% of the
                                                          current national threshold as per Chapter VI
(a) the value threshold determined for the                at the commencement of the public contract
    service order, provided that the design               award procedure, or
    contest procedure results in ordering a
    service;                                          (b) send a written invitation to tender at least to
                                                          three contractors at the same time if the
(b) the value threshold determined for the                value of its public procurements under this
    service order in the case of each design              Part does not reach 50% of the current
    contest where the total of the tender fees and        national threshold as per Chapter VI at the
    the fees paid (payable) to tenderers equals or        commencement of the public contract award
    exceeds this threshold.                               procedure, or

3. These national value thresholds shall be           (c) it may also publish the invitation to tender in
published by the Public Procurement Council in            the Public Procurement Bulletin in the case
the Public Procurement Bulletin.                          outlined in point (b).

          Value of public procurement                 2. If the public procurement is carried out for a
                                                      foreign representation, contrary to the provisions
                   Article 298                        set out in paragraph 1 the contracting authority

1. The value of public procurement means the          (a) shall send in writing and at the same time an
highest full consideration, generally requested or        invitation to tender to at least three bidders,
quoted for the subject thereof at the launch of the
contract award procedure, excluding value-added       (b) or may also publish the invitation to tender
tax and calculated in accordance with the                 in the Public Procurement Bulletin.
provisions of Articles 36–40 (estimated value).
                                                      3. The invitation to tender shall include at least
2. The launch of the contract award procedure         the following details:
shall be the date when the invitation to tender
launching the regular contract award procedure is     (a) the name, address, telephone and fax
dispatched for publication or sent to tenderers.          numbers (and e-mail address) of the
                                                          contracting authority;
3. If according to 40 (2) the aggregated value
of the subjects of the procurements whose             (b) the subject and quantity of the public
individual value is less than the value threshold         procurement, the technical specification for
determined in Article 297 calls for a public              public procurement, the quality criteria and
contract award procedure in accordance with this          the performance requirements ;
Chapter, then procuring the subjects of
procurements included in the aggregated value in      (c) a definition of the contract;



114
                                                       but it shall apply the provisions of Article 69 (3)
(d) the term of the contract or the time-limit of      in the verification process as appropriate.
    the performance;

(e) the place of performance;                                             Article 300

(f) the payment terms and reference to the             1. If the contracting authority does not receive
    relevant legislation;                              at least three tenders, it may start the assessment
                                                       of the received tenders, or without opening the
(g) the tender assessment criterion;                   tenders received the contracting authority may
                                                       issue a new invitation to tender in accordance
(h) the suitability requirements         and     the   with Article 299 (1). The tenderer(s) who
    provisions of Article 69 (2);                      submitted a tender for the original invitation
                                                       must be invited to submit their tender again
(i) whether the correction of deficiencies is          stipulating that the originally submitted tender
    allowed or prohibited;                             may be upheld, provided that the terms and
                                                       conditions of the invitation to tender have not
(j) the time limit for the receipt of tenders;         changed in the intervening time.

(k) the address where the tenders must be              2. If the service is ordered following a design
    submitted;                                         contest and the contracting authority must
                                                       conclude a contract with one of the winners
(l) the language(s) of the tender;                     (awarded tenderers) on the basis of the
                                                       recommendation of the assessment panel, the
(m) the tender opening date and place;                 contracting authority must invite to tender all
                                                       tenderers recommended by the assessment panel
(n) whether negotiations are possible in the           in the design contest procedure. In this case
    course of the procedure or the submitted           paragraph 1 shall not apply.
    tenders    will  be   assessed   without
    negotiations;                                      3. In the procedure, the contracting authority is
                                                       bound by the terms and conditions specified in
(o) if it is a negotiated procedure, then the          the invitation to tender, while the tenderer is
    procedure for conducting the negotiations,         bound by its tender, except for negotiated
    its rules set out by the contracting authority,    procedures. However, the negotiations must not
    and the date and timing of the first meeting;      result in a change in any attribute or
                                                       circumstance of the subject of the contract
(p) the planned date and timing of contract            concluded on the basis of the procedure, relative
    conclusion;                                        to the subject envisaged to be procured at on the
                                                       launch of the public procurement [Article 298
(q) the date when the invitation to tender is          (2)], that would not have rendered the
    dispatched or sent.                                employment of the regular contract award
                                                       procedure possible. Upon the conclusion of
4. In the invitation to tender the contracting         negotiations the parties shall be bound by their
entity may also set out the grounds for                tenders.
disqualification. In this case only the grounds
listed in Articles 60–62 can be specified. The         4. On completion of the tender assessment, the
tenderer shall make a statement to the effect that     contracting authority shall sum up the tenders in
no grounds for disqualification are present in his     writing according to the template provided in the
case.                                                  separate act of legislation. This written summary
                                                       must be sent to all tenderers before the
5. The suitability of the tenderer shall be            conclusion of the contract. The summary may
determined in accordance with Articles 66, 67          also be published in the Public Procurement
and 69, stipulating that the contracting authority     Bulletin.
may also prescribe other objectively defined
suitability criteria and methods of certification,




                                                                                                     115
5. A successful public contract award
procedure ends with the conclusion of the             3. To regular design contests, Article 1, Article
contract.                                             6–7, Article 10 (3), (5) and (7), Article 15–16,
                                                      Article 20 (1), Article 61 (3), Article 156 (4),
6. In a simple contract award procedure for           Article 157 (4), Article 158, Article 296 (a) and
starting the procedure Article 48 (2)-(3); for the    Article 298 shall also apply.
invitation to tender Article 52; for supplementary
information Article 56; for the evaluation criteria
Article 57 (1)-(5); for the tender Article 70 (1)                       PART FIVE
and Article 73; for the time limit to submit
tenders and for the binding period Article 74 (6)      AMENDMENT AND PERFORMANCE OF
and Article 75 (2); for the submission and            CONTRACTS CONCLUDED PURSUANT TO
opening of tenders Articles 79–80; for the                A PUBLIC CONTRACT AWARD
assessment of tenders Articles 81–89 and                 PROCEDURE, AUDIT OF PUBLIC
Articles 91–92;        for information on the                  PROCUREMENT
assessment of tenders Article 97; for the
conclusion of the contract Article 99 (1) and (3)-                         Title 46
(4); and in the case of negotiations Article 128
also shall apply accordingly as appropriate, with       Amendment and performance of contracts
the tender notice used in the meaning of
invitation to tender. In cases of simple public                    Amendment of contracts
contract award procedures Article 249 shall also
apply as appropriate to the dispatch and                                 Article 303
publication of notices.
                                                      The parties can only amend parts of the contract
7. In simple contract award procedures the            drawn up on the basis of the invitation, the terms
provisions in Titles 21–25 and Titles 26–28 of        and conditions of the tender specifications and
this Act and also the provisions not listed under     the contents of the tender if a circumstance
paragraph 6 of Title 32 of this Act may also          violating a material legitimate interest of either
apply, as appropriate.                                party arises after the conclusion of the contract,
                                                      due to a reason unforeseeable at the time of the
                     Title 45                         conclusion of the contract.

  Rules applicable to regular design contest                    Performance of the contract
                 procedure
                                                                         Article 304
                   Article 301
                                                      1. The contract shall be performed by the
1. If the contracting entity is conducting a          contracting party entering into the contract as the
regular design contest, it shall proceed in           tenderer awarded the contract in the public
accordance with the provisions of Title 45.           contract award procedure [Article 91 (2), Article
                                                      52].
2. The detailed rules applicable to regular
design contest are determined in the relevant         2. Only those subcontractors may take part in
legislation.                                          the execution of the contract on the tenderer’s
                                                      side, which were invited in the offer, provided
                   Article 302                        that the contracting autority prescribed in its
                                                      invitation to identicate all subcontractors
1. The regular design contest is a restricted         intended to be employed for the performance of
procedure where the contracting authority must        more than 10% of the contract value; in this case
invite to tender directly, simultaneously and in      the subcontractor shall not use a performance
writing at least three tenderers.                     assistant to an extent that is more than ten
                                                      percent of their own performance. If the contract
2. On conclusion of the tender assessment, the        or any part thereof cannot be performed using
contracting entity shall sum up the tenders in        the identified subcontractor due to a reason
writing.                                              unforeseeable at the time of the contract



116
conclusion and arising thereafter, the contracting      the expiry of the time-limit set out in paragraph
authority as contracting party may consent to the       (3), a prompt collection banking order against
employment of another identified organisation           the bank account of the contracing authority
(person), provided that such organisation               listed in Article 22 (1).86
(person) meets the requirements applicable to
subcontractors in the public contract award             5. If the party entering into the contract as
procedure.                                              tenderer has payed the consideration defined in
                                                        its contract concluded with its subcontractor, or
                    Article 305                         refused this payment to its subcontractor
                                                        appointed in its tender, in case of Article 304 (2),
1. The party entering into the contract as              in the contract, the tenderer shall inform the
contracting authority shall make a written              contracting authority thereof without any delay.
declaration on acknowledgement of the                   If the tenderer does not fulfil its obligation to
performance of the contract (receipt of                 give that notice within five days, the
performance) or on the refusal of such                  subcontractor is entitled to to notify the
acknowledgement, unless otherwise stipulated by         contracting authority about the data set forth in
law, within 15 days from the date of the                paragraph (6). The contracting authority shall
performance by the party entering into the              immediately arrange the publication of the data
contract as tenderer or of the receipt of the           set forth in paragraph (6) on its website provided
written notification thereof.83                         that it has one.87

2. In case of a works contract the party                6. The notice described in paragraph (5) shall
entering into the contract as contracting authority     contain at least the following:
shall issue a receipt of performance upon the           (a) the indication of the contract award
request of the party entering into the contract as      procedure and reference to the contrct notice;
tenderer if the contracting authority does not start    (b) the indication of the tenderer and the
the delivery procedure upon the written notice          subcontractor;
(completion notice) of the party entering into the      (c) the amount of the consideration, the
contract as tenderer within 15 days following the       condition of its payment and the reference to the
deadline defined in the contract as the deadline        applicable legal regulations;
for starting the delivery procedure, or if they start   (d) the subject matter of the contract and the
in time but does not finish with it until the           date of its performance;
deadline defined in the contract.84                     (e) the due date of the consideration or the
                                                        reason for the refusal of performance. 88
3. The party entering into the contract as
contracting authority shall pay the consideration                   Miscellaneous provisions
for the tenderer within thirty days, or in case of
public procurement procedures supported by                                 Article 306
funding from the European Union, within sixty
days following the performance of the contents          1. The party having entered into the contract as
of the contract in the manner specified therein,        contracting authority may terminate the contract
unless otherwise stipulated by law, or the parties      if it stipulated that the winning tenderer must set
have agreed on deferred payment of the                  up a company (Article 52) and the tenderer does
consideration or on payment in instalments.85           not register the conclusion of the articles of
                                                        incorporation or the acceptance of the articles of
4. In case of performance in accordance with            association with the Court of Registry within
the contract has been confirmed by the                  sixty days following the conclusion of the
contracting authority, the party having entered         contract.
into the contract as tenderer may file, following

83                                                      86
   This provision entered into force on 7 July             This provision entered into force on 7 July
2007.                                                   2007.
84                                                      87
   This provision entered into force on 7 July             This provision entered into force on 7 July
2007.                                                   2007.
85                                                      88
   This provision entered into force on 7 July             This provision entered into force on 7 July
2007.                                                   2007.


                                                                                                       117
2. In case of public works the party entering
into the contract as tenderer must take out an            Audit of public contract award procedures
appropriate liability insurance.
                                                          Information notice about the amendment and
3. In case of public works, the party entering                    performance of the contract
into the contract as contracting authority shall
supervise the work through its on-site                                   Article 307
representative (technical inspector) throughout
the performance of the contract concluded            1. The contracting authority shall draw up an
pursuant to a public contract award procedure, in    information notice about the amendment and the
accordance with the terms and conditions set out     performance of the contract according to the
in the relevant legislation.                         templates provided in the relevant legislation,
                                                     and publishes it in the Public Procurement
4. The conditions set out in Article 303, Article    Bulletin. The notice shall be dispatched within
304 (2) and in paragraphs (1)–(3) shall constitute   five working days following the amendment or
part of the contract even if the parties did not     performance of the contract by both parties. In
agree, or otherwise agreed, about this.              the case of contracts concluded for a term over
                                                     one year or for an indefinite period of time, such
5. In case of public works concession, if the        notice shall be drawn up annually about the
contract also falls within the force of the Act on   partial performance of the contract. In the scope
Concessions, paragraph 4 shall apply with            of the information obligation concerning the
derogations pursuant to the provisions of the Act    performance of the contract, in the case of
applicable to concession contracts and               performance due at different date(s), the date of
concession companies.                                the performance acknowledged by the
                                                     contracting authority and the date when the
6.89                                                 payment of the consideration is due, shall be
                                                     defined separately. The party contracted as
                 Article 306/A90                     tenderer must declare in the notice that it agrees
                                                     with the contents thereof.91
1. The provision of the contract concluded
pursuant to a contract award procedure shall be      2. The contracting authority shall arrange for
considered null and void should it                   publication of the information notices concerning
(a) exclude or restrict the application of legal     the amendment and performance of the contract
consequences stipulated to a breach of contract      on its website, provided it has one, immediately
perpetrated by the contracting authority, or         after the publication of information notices,
(b) differ form paragraphs (2) and (3) of Article    described in paragraph (1), in the Public
301/A of the Civil Code, concerning the interest     Procurement Bulletin.92
for late payment, at the expense of the entitled
party.                                               3. Paragraph 1 shall not apply, if the contract
2. The contracting authority may set off only        award procedure is conducted as set out in Part
the overdue claims of the same kind that are         four of this Act and it is started by a direct
acknowledged by the entitled party against its       invitation to tender.
debts arising from the consideration based on the
contract concluded pursuant to a contract award      4. The Public Procurement Council shall send
procedure.                                           to the relevant audit bodies and those performing
3. In respect of other issues, the provisions of     the audit according to Article 308 (2) any notices
the Civil Code shall be applied regarding the        referred to in paragraph 1 if they imply that the
contracts concluded pursuant to a contract award     contract was amended in a manner conflicting
procedure.                                           with Article 303, and a considerable breach of
                                                     contract has occurred attributable to certain
                    Title 47

89                                                   91
    This provision is ceased to be in force             This provision entered into force on 7 July
following 7 July 2007.                               2007.
90                                                   92
   This provision entered into force on 7 July          This provision entered into force on 7 July
2007.                                                2007.


118
circumstances   for   which     either   party    is   contracting authority concluded within the last
responsible.                                           three years before the commencement of the
                                                       attestation procedure and involving attestation.
          Audit bodies, internal audit
                                                                           Article 310
                  Article 308
                                                       1. The contracting entity referred to in Article
1. Public procurements and public contract             162 may publish in the Official Journal of the
award procedures are regularly audited by the          European Union (TED data bank) in a notice a
competent audit bodies specified in the relevant       declaration specified in Annex 5 about having
legislation, in accordance with their roles and        obtained the attestation if such attestation also
responsibilities and scope of authority, and they      covers the conformity of its contract award
may initiate a procedure or measure in case of         procedures and practice referred to in Chapter V.
infringement.
                                                       2. If the attestation of the contracting authority
2. Public procurements and public contract             referred to in Article 162 is only related to the
award procedures must be audited according to          contract award procedures and practice described
the supervisory and internal audit system of the       in Chapter VII, then the contracting authority
budgetary authorities set out in the relevant          may publish a declaration specified in Annex 6
legislation.                                           in its notices to be published in the Public
                                                       Procurement Bulletin .
                   PART SIX
                                                       3. The contracting entities not mentioned in
                ATTESTATION                            paragraphs 1 and 2 may publish a declaration
                                                       specified in Annex 6 about having obtained the
   Certification of the contracting authority’s        attestation, in their notices to be published in the
    contract award procedures and practice             Public Procurement Bulletin.

                  Article 309                                       Accreditation of attestors

1. The contracting authority may request the                               Article 311
attestation of the conformity with the law of its
public contract award procedures and practice          The accreditation of attestors (award, suspension,
falling under the scope of this Act. Such              withdrawal) is carried out by the National
attestation can only be requested from an              Accreditation Board (hereinafter referred to as
accredited attestor.                                   ‘Board’) in accordance with the provisions of a
                                                       specific law. The Board works in co-operation
2. The attestation shall attest for three years        with the Public Procurement Council.
following its issue the conformity of the
procedures and practice of the contracting                                 Article 312
authority referred to in paragraph 1, provided
that in the meantime no considerable                   1.   Accreditation criteria for attestors:
amendments have been made to the legislation
applicable to public procurement.                      (a) degree in higher education and a minimum
                                                           of three years experience in public
3. For the purposes of paragraph 1, an                     procurement;
accredited attesting body is an attesting
organisation or individual accredited in Hungary       (b) no criminal record;
or in any member states of the European Union.
                                                       (c) knowledge of Hungarian and European
4. The contracting authority shall not call upon           Union law pertaining to public procurement;
an accredited attestor to conduct the attestation
procedure who has acted as an official public          (d) compliance with other criteria pursuant to
procurement consultant, or has been involved in            the relevant standard [(MSZ) EN 45503].
any other capacity, or acted as a conciliator, in
any public contract award procedures of the



                                                                                                      119
2. If the entity applying for accreditation is not
a natural person, then there must be at least one                  Attestation procedure
person among its members personally assisting
in its activity, employees or those acting for the                      Article 315
benefit of the organisation pursuant to a long-
term civil law contract who meets the criteria set   1. The attestor shall attest to the contract award
out in paragraph 1, and the organisation must        procedures and practice of the contracting
comply with the other criteria determined in         authority without any undue influence.
accordance with the relevant standard.
                                                     2. Attestors shall be required to conduct a
3. The Board shall suspend or withdraw the           detailed examination of the contract award
accreditation if the attestor does not fulfil the    procedures and practices of the contracting
criteria required for the accreditation, or if the   authority. They shall, at the request of the
attestor fails to observe the law and the relevant   contracting authority, report in writing to the
standard in pursuing its activity.                   contracting authority on the results of their
                                                     examination. Should the attestors identify any
4. The suspension or withdrawal of the               shortcomings or irregularities in the course of
accreditation shall not prejudice the validity of    their examination, they shall call upon the
attestations issued by the attestor prior to its     contracting authority to correct them.
suspension or withdrawal.
                                                     3. Where a attestor concludes in an attestation
5. Attestors whose accreditation has been            procedure that the contract award procedures and
withdrawn by the Board may only apply for a          practices of the relevant contracting authority are
new accreditation three years after the              in conformity with the law, it shall issue a
withdrawal.                                          attestation to the contracting authority.

                   Article 313                       4. Should the attestor identify any irregularities
                                                     in the contract award procedures and practices of
1. The accredited attestor shall promptly report     the contracting authority, it may issue a
to the Board any changes in its compliance with      attestation only on condition that the contracting
the accreditation criteria.                          authority has corrected the irregularities
                                                     identified and has taken the necessary measures
2. The Public Procurement Council is entitled        to ensure that no further irregularities occur.
to verify the attestor’s compliance with the
accreditation criteria as well as the attestor’s     5. The attestor is bound by a confidentiality
activity.                                            obligation with respect to any facts, solutions or
                                                     data obtained in the course of the attestation
3. The Public Procurement Council may                procedures.
require the attestor to supply any documents
related to its attestation activity, call upon the   6. The attestation procedure shall otherwise be
attestor to provide all required information and     governed by the relevant standard [(MSZ) EN
conduct an on-site inspection.                       45503] with the derogation that only Chapters IV
                                                     and VI, and in cases of attestation of contract
4. Based on its inspection, the Public               award procedures and practice in accordance
Procurement Council may file a complaint about       with Part Four the provisions of the standard
the attestor’s activity with the appeal committee    shall apply as appropriate.
of the Board, and initiate the withdrawal of the
accreditation.                                       7. The costs of the attestation procedure shall
                                                     be borne by the contracting authority requesting
                   Article 314                       the attestation procedure.

The Public Procurement Council shall publish in                       PART SEVEN
the Public Procurement Bulletin and on its
homepage the list of accredited attestors in          JUDICIAL REMEDIES AVAILABLE FOR
accordance with the Board’s register on                     PUBLIC PROCUREMENT
accredited attestors.



120
                 CHAPTER VIII                        2. With the exception provided in Paragraph 3,
                                                     in the proceedings of the Arbitration Committee
 GENERAL PROVISIONS APPLICABLE TO                    for Public Procurement the rules of procedure
        JUDICIAL REMEDIES                            related to electronic administration according to
                                                     Articles 160 to 162 of SP shall not apply.
                    Article 316
                                                     3. The following electronic procedures may be
1. Against acts or omissions in violation of the     applied in the proceedings of the Arbitration
legislation applicable to public procurement and     Committee for Public Procurement:
public contract award procedures, judicial
remedy pursuant to the provisions of this Part       a)   Submission of applications, of briefs, and of
shall be available.                                       annexes thereto;

2. The judgement of legal disputes related to        b) Invitation for the submission of missing
contracts concluded pursuant to a contract award        data, and submission of missing data,
procedure, with the exception of legal disputes
arising from the amendment of the contract           c)   Submission of       an   application   for   a
violating Article 303 or from the performance of          certification;
the contract violating Articles 304 or 306 (2),
and legal disputes related to the issue of receipt   d) Summons;
of performance for deadline in accordance with
paragraphs (1) and (2) of Article 305, 93 and        e)   The notification of client and any other
claims in civil law related to contract award             authority      communication         regarding
procedures shall fall within the competence of a          information to, notification of, and invitation
court.                                                    to the client.

3. Wherever this Part refers to public                    Powers and jurisdiction of the Arbitration
procurement or public contract award procedure,             Committee for Public Procurement
such reference shall also include design contests.
                                                                         Article 318
                  CHAPTER IX
                                                     1. The Arbitration Committee for Public
      PROCEDURE OF THE ARBITRATION                   Procurement shall have the powers to conduct
          COMMITTEE FOR PUBLIC                       proceedings initiated against any infringement of
     PROCUREMENT, JUDICIAL REMEDIES                  the legislative provisions applicable to public
       CONCERNING ITS RESOLUTIONS                    procurement and public contract award
                                                     procedures, including the case described in
                      Title 48                       Article 219 (9).

               General provisions                    2. The Arbitration Committee for Public
                                                     Procurement shall have the powers to conduct
        Application of the rules of the state        proceedings initiated against the amendment or
        administrative authority procedure           performance of contracts, concluded in a public
                                                     contract award procedure, in a manner violating
                    Article 317                      this Act.

1. Save as otherwise provided for in this Act,       3. The Arbitration Committee for Public
to the procedure of the Arbitration Committee        Procurement shall also have powers to decide
for Public Procurement the provisions of the Act     legal disputes related to infringements within the
CXL of 2004 on the General Rules of the State        meaning of paragraph 1 and 2, committed by any
Administrative Authority Procedure (hereinafter      organisation (or natural person) applying this Act
referred to as ‘SP’) shall apply.                    on a voluntary basis.

                                                     4. The powers of the Arbitration Committee
93
  This provision entered into force on 7 July        shall extend to the whole territory of the state.
2007.


                                                                                                    121
                    Title 49                        commissioners shall be prohibited from acting in
                                                    the public procurement case if
      Public procurement commissioners
                                                    (a) they own a share in the contracting authority
                  Article 319                           or in an entity which has unlawfully failed to
                                                        adopt the contract award procedure in its
1. In the cases determined in paragraphs                procurement, or own a share in a tenderer or
Article 318 (1)–(3) (hereinafter referred to as         in any other interested entity having initiated
‘public procurement cases’), barring the                the procedure (hereinafter jointly referred to
exception described in paragraph 4, the                 as ‘client entity’);
Arbitration Committee for Public Procurement
shall act in a panel consisting of three public     (b) they own a share in an entity which
procurement     commissioners,    passing    its        maintains regular business relations with the
resolution by a majority vote.                          client entity;

2. The members and the president of the             (c) he has been an employee, or has been in
proceeding panel shall be appointed by the              another legal relationship for the purpose of
President of the Arbitration Committee for              employment with, or has held a membership
Public Procurement. At least two of the                 in, or has been an executive officer or a
appointed members of the panel to try the case          member of the supervisory board of, or has
shall have qualified for the Bar, and wherever          had a share in, the client organisation within
possible, one of the members should have a              the last two years preceding the
degree in higher education closely related to the       commencement of the remedy procedure.
subject-matter of the case. The president of the
panel shall only be a public procurement            2. Public procurement commissioners shall be
commissioner who has qualified for the Bar.         prohibited from acting in a public procurement
                                                    case if any of their relatives
3. The president of the proceeding panel shall
be responsible for preparing and overseeing the     (a) is employed by, or has a working
procedure. With the exception of interim                relationship of any other kind with, the
measures and of resolutions resulting in an end         client entity or is a member thereof, or an
of the public procurement case [Articles 30 and         executive officer or board member thereof;
31(1) of SP, and Articles 325 (3) and (4) of this
Act] and of a resolution on the substance of the    (b) owns a share in the client entity;
public procurement case (in the following:
substantial resolution) [(Article 340 (1)], the     (c) is an employee or has a working relationship
president of the proceeding panel may take any          of any other kind with, or is a member, an
measures and make any decisions which, under            executive officer or board member of, an
the provisions of this Act, fall within the             entity which maintains regular business
competence of the Arbitration Committee.                relations with the client entity, or owns a
                                                        share of the former;
4. In matters specified in Article 328 a public
procurement commissioner of the Arbitration         (d) works as a civil servant for an entity which
Committee for Public Procurement shall                  is either responsible for the supervision of
proceed.     Only      public      procurement          the client entity or is subordinated to it, or
commissioners having qualified for the Bar can          has granted the client entity any support or
be appointed single commissioners by the                exclusive rights.
chairman of the Arbitration Committee for
Public Procurement. Any reference in this Act to                       Article 321
proceeding panel (president) shall also include
single commissioners.                               1. The public procurement commissioner shall
                                                    notify without delay and not later than within 3
                  Article 320                       (three) days the Chairman of the Arbitration
                                                    Committee if any reason for his exclusion arises
1. Save for the cases specified in Article 42 (1)   pursuant to Article 320 of this Act or Article 42
and (3) of the SP, public procurement               (1) or (3) of the SP. He shall assume disciplinary



122
and financial liability for any failure of, or delay   right or legitimate interest is being harmed or
in, filing such notification.                          risks being harmed by an activity or failure
                                                       which is in conflict with this Act.
2. The decision in exclusion cases shall be
made by the Chairman of the Arbitration                2. The application may be submitted within
Committee for Public Procurement, who shall            fifteen days after the occurrence of the
appoint a new member of the proceeding panel if        infringement, and within eight days following
necessary, and decides whether the acts of the         the announcement of the results in cases of
proceeding carried out by the excluded public          infringing decisions closing a public contract
procurement commissioner shall be repeated.            award procedure. If the applicant learned of the
                                                       infringement at a later date, the time-limit shall
3. If the public procurement commissioner has          commence at that point of time. No application
reported the reason for the exclusion himself, he      may be submitted later than 90 days following
shall not proceed in the case until the report has     the occurrence of the infringement. Failing to
been dealt with. He may proceed in the case            meet such time-limits shall result in the forfeiture
under any other circumstances, but he shall not        of rights.
be involved in passing a resolution concluding
the case. This restriction shall not be applicable     3. When compliance with the time-limit
if a claim is repeatedly made by the client against    referred to in paragraph 2 is examined, the
the same commissioner.                                 infringement shall be deemed to have become
                                                       known at:
4. If the reason for the exclusion has been
reported by the client, the client may challenge       (a) the publication date of the notice in the case
the resolution refusing the exclusion in the               of a notice launching a contract award
review against the resolution passed on the                procedure or the date when the invitation
substance of the case.                                     was sent in cases of direct invitation;

5. In case a member of the proceeding panel is         (b) the publication date of the notice, in the case
excluded, the time spent on dealing with the               of notices which have been published after
exclusion shall not be included when calculating           the expiry of the relevant time-limit;
the time-limits for the proceeding.
                                                       (c) the date of the conclusion of the contract, or
6. If the member of the Arbitration Committee              if this date cannot be established, then the
for Public Procurement is participating in the             commencement of its performance by either
procedure as a member of the proceeding panel,             party, in case of a procurement bypassing
the decision on his exclusion shall be made by             the contract award procedure.
the president of the Public Procurement Council.
                                                       4. When establishing the time-limit pursuant to
                     Title 50                          paragraph 2, the infringement shall be considered
                                                       to have been learnt about
Procedure of the Arbitration Commission for
            Public Procurement                         (a) on the fifteenth day from the publication of
                                                           the notice or the receipt of the direct
         Launching remedy proceedings                      invitation launching the public contract
                                                           award procedure with unlawful content, or
                   Article 322                             from the day when the tender specifications
                                                           were made available;
The Arbitration Committee shall proceed upon
application or of its own motion.                      (b) on the fifteenth day after the expiry of the
                                                           publication date of the notice in the case of a
                   Article 323                             notice dispatched following the expiry of the
                                                           prescribed time-limit;
1. An application may be submitted by the
contracting authority and any tenderers,               (c) on the thirtieth day from the publication of
candidates or any other interested person                  the notice communicating the amendment or
(hereinafter referred to as ‘applicant’) whose             performance of the contract, in cases of



                                                                                                      123
     contracts concluded in a public contract        specified in Part 3 and Part 4 of this Act. If the
     award procedure and amended or performed        application is aimed to establish if the notice
     in a manner violating this Act.                 (invitation) is illegal, the fee is HUF 150.000
                                                     only. No exemption shall be granted from the
5. The tenderer or other interested applicant        payment of the fee. The application shall be
shall notify the contracting entity or procurer      accompanied by a supporting document showing
before submitting its application.                   that the fee has been paid.

                    Article 324                      4. The number of copies of the application
                                                     which are to be lodged shall be the number of
1.   The application shall state:                    potential parties concerned in the proceedings as
                                                     can be known to the applicant, plus one.
(a) the name and place of establishment (place
    of residence) of the applicant (and its                             Article 325
    representative), and the facts supporting the
    eligibility of the applicant;                    1. The remedy procedure pursuant to an
                                                     application in compliance with Article 323 (1)–
(b) the name and place of establishment of the       (4) and 324 shall be launched by the Arbitration
    contracting authority of the contract award      Committee on the working day following the day
    procedure concerned in the application and       of receipt of such an application at the latest.
    the subject of the procurement, or as the case
    may be, the name, and place of                   2. If the application does not include the
    establishment of the procurer and the subject    information as provided for in Article 324 (1) or
    of the procurement in the case of a              there is no supporting document to show that the
    procurement carried out without a contract       fee provided for in Article 324 (3) has been paid
    award procedure;                                 or as the case may be, no authorisation for the
                                                     authorised agent has accompanied the
(c) the date when the infringement occurred and      application, the Arbitration Committee for Public
    the date when the applicant learnt thereof;      Procurement shall call upon the applicant to
                                                     supply the missing information or document(s)
(d) the infringed provision of law;                  within five days, and warns the applicant that,
                                                     should he submit an incomplete application
(e) the proposal (motion) for the decision of the    again, such application shall be dismissed by the
    Arbitration    Committee       for    Public     Arbitration Commission for Public Procurement.
    Procurement [Article 340 (2)–(6)] and the
    reasons for such a decision;                     3. If the Arbitration Committee for Public
                                                     Procurement concludes that the application has
(f) the proposal (motion) for ordering an            been submitted by an ineligible person, it shall
    interim measure (Article 332) and the and        dismiss the application with a decision brought
    the reasons for it;                              within eight days without a substantive
                                                     examination. According to Article 345 an
(g) the names and place of establishments            individual review shall be available regarding a
    (places of residence) known to the applicant     decision dismissing an application without a
    of any entities possibly interested in the       substantive examination.
    public procurement case.
                                                     4. The Arbitration Committee may dismiss
2. If the applicant is represented by an agent in    proceedings with a decision in cases if according
the procedure, the authorisation of such an agent    to Paragraph 3 a substantive reason existed for
shall be attached to the application.                dismissing the application, but the reason for
                                                     dismissing was learned by the Arbitration
3. Applications for a procedure by the               Committee only after the procedure had started.
Arbitration Committee for Public Procurement         According to Article 345 an individual review
shall be subject to the payment of an                shall be available regarding the decision
administrative service fee, the value of which is    dismissing proceedings.
HUF 900.000 for procedures specified in Part 2
of this Act, and HUF 150.000 for procedures



124
5. The applicant may withdraw his application          paragraph 1 (b) (c), (e) and (g) shall not initiate a
initiating proceedings until a resolution has been     procedure after a year, or, in the case of an
passed pursuant to Article 340 (1) on the              unlawful bypass of the public contract award
substance of the case. If the application is           procedure, after three years, from the occurrence
withdrawn, the administrative service fee shall        of the infringement.
not be reimbursed to the applicant.
                                                       3. Document initiating the ex officio procedure
                      Article 326                      of the Arbitration Committee for Public
                                                       Procurement shall contain the data listed in
The Arbitration Committee shall launch a               Article 324 (1) (a)–(d) and (g), and a proposal
procedure of its own motion in the cases               may be made concerning points (e) and (f). The
specified in Article 327 (1), 328 and 329.             initiating document shall be accompanied by
                                                       copies of the documents available in relation to
                      Article 327                      the procurement (or public procurement)
                                                       involving an infringement.
1. A procedure of the Arbitration Committte
for Public Procurement of its own motion may           4. The Arbitration Committee for Public
be initiated by the following entities or persons      Procurement shall launch the procedure on the
on the grounds that they have, in the                  first working day following the receipt of the
performance of their duties, learned of any            initiative complying with paragraph 1.
behaviour or omission in violation of this Act:
                                                       5. If the initiative does not contain the data set
(a) a member and Chairman of the Public                out in paragraph 3, the Arbitration Committee
    Procurement Council;                               shall call on the entity or person concerned to
                                                       provide the missing data. Article 325(2) shall be
(b) the State Audit Office;                            applied appropriately regarding missing data.

(c94) an internal audit body designated by the         6. Dismissal of the initiative without a
     Government;                                       substantive examination, and a termination of the
                                                       procedure with a decision shall be governed by
(d)95 the public administration office;                Article 325(3) and (4), appropriately.

(e)96 the treasury;                                                        Article 328

(f)97 the     parliamentary          commissioner      If the contracting authority fails to present to the
      (ombudsman);                                     Public Procurement Council the annual statistical
                                                       summary by the time-limit set in Article 16 (3),
(g) the entity granting support for the public         the Chairman of the Arbitration Committee for
    procurement, or the entity co-operating            Public Procurement shall launch the ex officio
    pursuant to law in the use of the support;         procedure of the Committee according to Article
                                                       327.
(h) the entity entitled to calls for applications in
    centralised public procurement.                                        Article 329

2. As regards the time limit fixed for initiating      1. Where the president of the Arbitration
the procedure, the provisions of Article 323 (2)–      Committee finds upon the examination of the
(3) shall apply, the organisations referred to in      documents submitted to the Arbitration
                                                       Committee for Public Procurement in relation to
94
   This provision entered into force on 1 January      the launch of a negotiated procedure without
2007.                                                  prior publication of a tender notice or that of a
95
   This provision entered into force on 1 January      simplified procedure, that there is a well-founded
2007.                                                  supposition of a breach of the rules and
96
   This provision entered into force on 1 January      fundamental principles set out for public
2007.                                                  procurement and for public procurement
97
   This provision entered into force on 2 July         procedures, he shall commence the procedure of
2007.                                                  the    Arbitration Committee          for    Public



                                                                                                       125
Procurement ex officio not later than fifteen days
counted from the receipt of such documents.                             Merging cases

2. Where compliance with the requirements set                            Article 331
out by law concerning the applicability of a
negotiated procedure without prior publication of     The Arbitration Committee for Public
a tender notice or a simplified procedure, or         Procurement may order that certain cases being
lawfulness of an invitation to tender prescribed      dealt with by the Commission be merged if their
by law cannot be clearly established on the basis     subjects are interrelated or settling such cases
of the documents supplied by the contracting          collectively is justified by practical, economic or
authority, the Chairman of the Arbitration            other procedural considerations.
Committee for Public Procurement shall call
upon the contracting authority to supply within                       Interim measures
three days the missing information as required by
him. Should the contracting authority fail to                            Article 332
produce the missing information, the Chairman
of the Arbitration Committee shall decide on the      1. In an ongoing remedy procedure the
basis of the information already available.           Arbitration Committee may, on request or of its
                                                      own motion, order interim measures until the
                   Article 330                        conclusion of the contract entered into in the
                                                      public contract award (or procurement)
1. The Arbitration Committee for Public               procedure involved in the remedy procedure,
Procurement shall notify the clients and any          taking into account all circumstances in the case
parties interested in the public procurement case     in question, if there is indicative evidence that an
of the launch of the procedure, and shall request     infringement of the rules of this Act or principles
them to submit their comments within five days.       has been committed or a risk thereof exists.
The Arbitration Committee shall attach to the
notice the application, or in cases of ex officio     2. As an interim measure, the Arbitration
launched proceedings according to Articles 327        Committee for Public Procurement shall
and 328, the document initiating this procedure.
                                                      (a) order the suspension of the contract award
2. Furthermore the Arbitration Committee for              procedure;
Public Procurement shall call upon the
contracting entity of the relevant contract award     (b) prohibit the execution of a contract not yet
procedure or the procurer who carried out a               concluded;
procurement bypassing the contract award
procedure, to supply without delay all documents      (c) call upon the contracting authority involved
related to the procurement in question, or if it is       in the contract award procedure to invite the
not required, the documents required by the               applicant seeking a remedy to take part in
Committee, concerning such procurement. When              the contract award procedure.
the application is submitted by the contracting
entity, the available documents shall be supplied     3. Suspension of the contract award procedure
by the entity together with the application.          shall result in extending the already running time
                                                      limits prescribed in the invitation by the duration
3. When a procedure is launched by the                of the suspension period.
Arbitration Committee for Public Procurement,
the contracting authority may suspend the                 Initiating a preliminary decision-making
ongoing public contract award procedure or                    procedure by the European Court
postpone the conclusion of the contract until a
resolution is made by the Arbitration Committee                          Article 333
for Public Procurement. The contracting
authority shall also notify the Arbitration           1. If the Arbitration Committee for Public
Committee for Public Procurement to this effect.      Procurement initiates a preliminary decision-
The suspension of the public contract award           making procedure by the European Court in
procedure shall extend any time limits running        accordance with the rules laid down in the Treaty
by the duration of the suspension period.             establishing the European Community, such



126
initiative shall be subject of an individual
decision, and the Arbitration Committee for                    Equal treatment of the parties
Public Procurement shall suspend the procedure
in question at the same time. In its decision, the                      Article 335
Arbitration Committee for Public Procurement
shall identify the issue requiring a preliminary     The Arbitration Committee shall make
decision by the European Court, and recite the       arrangements to ensure that both the applicant
facts and the relevant Hungarian legislation to      (the party initiating the procedure) and the
the extent required for addressing the issue         opposing party can reveal all new facts in the
raised. At the same time when the decision is        course of the procedure, as well as all
delivered to the European Court, the Arbitration     applications and statements filed, and all
Committee for Public Procurement shall also          documents submitted to the Arbitration
supply a copy thereof to the Minister responsible    Committee for Public Procurement, and enable
for Justice98 for their information.                 both parties to put forward their points of view
                                                     thereon.
2. An individual review under Article 345 shall
be available concerning such a decision initiating                        Hearing
the preliminary decision-making procedure.
Appeal for such an individual review shall defer                        Article 336
the implementation of the decision.
                                                     1. At the hearing held by the Arbitration
     Scope of investigation by the Arbitration       Committee for Public Procurement, in addition
       Committee for Public Procurement              to the parties to the proceedings, other interested
                                                     persons may attend in person or through their
                   Article 334                       representatives,     and     they    may      make
                                                     representations, and bring forward their evidence
1. If during the ongoing remedy procedure and        until the hearing is closed.
before a resolution is made on the substance of
the case (Article 340 (1)) the Committee learns      2. The hearing shall be held in public. The
of an infringement additional to those already       Arbitration Committee for Public Procurement
being investigate pursuant to the application or     may, by its decision, exclude the public from the
initiative, it shall be required to proceed of its   hearing or a part of thereof if requested or ex
own motion also in respect of such an                officio if this is necessitated in order to keep a
infringement.                                        state secret, professional secret, business secret
                                                     or any other secrets defined as such in the
2. In case an application is being withdrawn,        relevant legislation.
the   Arbitration Committee         for    Public
Procurement shall continue the procedure if,                       Access to documents
based on the available data, there is indicative
evidence that an infringement has taken place.                          Article 337

3. Should the Arbitration Committee, in the          1. The applicant of the public procurement
course of the procedure, detect any                  case (the initiating party), the opposing party as
circumstances which might suggest that another       well as their representatives and any members of
law or regulation has been violated, it shall        the Public Procurement Council shall have the
report such violation to the competent authority,    right at any time during the procedure to view
in particular to the one responsible for             and make copies or notes of all documents drawn
prosecution, as well as to the State Audit Office,   up in the course of the contract award procedure
an internal audit body designated by the             or the remedy procedure.
government99 or the Office of Economic
Competition.                                         2. The contracting authority, the tenderer or the
                                                     applicant may request, referring to the protection
98
   This provision entered into force on 1 January    of business secrets, that a prohibition or
2007.                                                restriction be imposed on access to documents by
99
   This provision entered into force on 1 January    any persons specified in paragraph 1 in the case
2007.                                                of documents not considered to have public



                                                                                                   127
interest or information made public out of public     (a) has supplied false data or has failed to
interest, and the lack of their disclosure does not       disclose data relevant to the judgement of
impede the opposing party in exercising its right         the case;
to legal remedy while their disclosure to other
parties would unduly hurt the business interests      (b) has failed to supply the required information
of the party. When making a decision on an                or has supplied it after the expiry of the
application to this effect, the Arbitration               time-limit set therefore;
Committee may at the same time require the
relevant party to prepare a version of the            (c) has been hindering access to documents
document in question which will not include any           related to its business, professional or public
confidential business information.                        procurement activities;

3. Access to documents drawn up in the course         (d) has made a clearly unsubstantiated statement
of the public contract award procedure or the             with respect to exclusion, or makes a
remedy procedure as well as the making of                 repeated unsubstantiated statement against
copies and notes thereof by persons other than            the same public procurement commissioner
those referred to in paragraph 1 shall only be            during the same procedure.
granted to persons who have a legitimate interest
in getting to know the documents and their            2. A procedural pecuniary penalty may be
access to documents does not violate any rules        imposed more than once.
applicable to the protection of secrets. Such
access shall be subject to the permission of the      3. An individual review of the decision
Arbitration Committee.                                imposing a pecuniary penalty of a procedural
                                                      nature may be sought under Article 345. Appeal
4. Documents containing state secrets or              for such individual review shall defer the
service secrets shall not be accessed in the          implementation of the decision.
absence of the relevant permit. Neither shall
other documents containing other information                           Processing time
protected by law be accessed where such access
is prohibited by the legislation regulating the                          Article 339
protection of the relevant information, or the
entity specified in paragraph 1 and requesting        1. When no hearing is held in the case, the
access is not prevented from exercising its right     Arbitration Committee for Public Procurement
for judicial remedy by not being familiar with        shall be required to pass a decision within fifteen
the protected information.                            days counter from the launch of the procedure,
                                                      save for the case specified in paragraph 3.
5. Minutes taken of a hearing from which the
public has been excluded in order to protect a        2. In the event of the Arbitration Committee
state or professional secret must not be copied or    having held a hearing in the case, it shall be
have notes made of. Even access to such               required to pass a decision within thirty days
documents requires permission for access              counted from the launch of the procedure, save
pursuant to Act on State and Professional             for the case specified in paragraph 3.
Secrets, subject to the terms and conditions set
by the president of the Arbitration Committee for     3. In the case specified in Article 318 (2), the
Public Procurement.                                   Arbitration Committee for Public Procurement
                                                      shall make a decision within sixty days counted
                   Article 338                        from the launch of the procedure.

1. The Arbitration Committee for Public               4. Where justified, the time-limit referred to in
Procurement may impose a procedural pecuniary         paragraphs 1 and 2 may be extended for a period
penalty from HUF 50.000 up to HUF 500.000 on          of up to 10 days, and the time-limit referred to in
any person taking part in the public procurement      paragraph 3 may be extended for a period of up
case if such participant                              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.



128
5. Client shall not possess the right to apply for   (c) order the withdrawal of the attestation
a suspension of the proceedings.                         granted to the contracting entity;

Decision of the Arbitration Committee for Public     (d) order the application of Article 40 (4),
  Procurement on the substance of the matter             Article 179 (5), Article 245 (6) or Article
                                                         274 (3);
                   Article 340
                                                     (e) impose a pecuniary penalty on any
1. The Arbitration Committee for Public                  organisation (person) which has violated this
Procurement shall make its decision in the name          Act or has concluded a contract while being
of the Public Procurement Council. The                   aware of the manifest infringement
Committee may also combine the sanctions                 committed, and on any person liable for
defined in this Article.                                 such an infringement or for the conclusion
                                                         of such a contract, or on any person or entity
2. In its decision the Arbitration Committee for         having a legal relationship with the former
Public Procurement                                       entity and being liable for the infringement
                                                         in question.
(a) shall dismiss any unfounded applications;
                                                     4. If the infringement occurred while
(b) in proceedings launched ex officio shall         unlawfully and wilfully bypassing the public
    state the lack of infringement;                  contract award procedure, the Arbitration
                                                     Committee for Public Procurement shall state
(c) shall state that an infringement has occurred;   that an infringement has taken place, as well as
                                                     impose a pecuniary penalty.
(d) shall, before the closure of the contract
    award procedure, besides stating that an         5. Where the Arbitration Committee for Public
    infringement has taken place, call upon the      Procurement states that an infringement has
    person who committed the infringement to         taken place under a case pursuant to Article 328,
    act in conformity with the rules laid down in    it shall impose a pecuniary penalty.
    this Act, or shall order that the contracting
    entity may take its decisions only subject to    6. If the Arbitration Committee for Public
    certain conditions;                              Procurement establishes that an infringement has
                                                     occurred in the matter pursuant to Article 318
(e) shall, besides stating that an infringement      (2), it may impose a penalty.
    has taken place, declare void any decision
    made by the contracting entity either during     7. Application of the sanctions provided for in
    the contract award procedure or as a             this Act shall preclude the application of the first
    decision closing that procedure, provided        sentence of paragraph 2 of Article 200 of the
    that no contract has been concluded yet on       Civil Code.
    the basis of the decision in question;
                                                     8. Pursuant to the general rules set forth in civil
(f) shall adjudicate on who shall pay the fee for    law, the Arbitration Committee for Public
    administrative service and the costs related     Procurement may bring an action with a view to
    to the legal remedy procedure.                   annulling the contract concluded in a manner
                                                     infringing the legislation applicable to public
3. Where the Arbitration Committee for Public        procurement and public contract award
Procurement adjudicates pursuant to paragraph 2      procedures.
(c)–(e), it may
                                                                        Article 341
(a) prohibit the tenderer, for a period of no more
    than five years, from participating in any       1. Article 340 (3) (a) shall apply only in the
    public contract award procedure;                 event of serious or recurrent acts of
                                                     infringement. The period of prohibition shall be
(b) order the removal of the tenderer from the       fixed taking due account of all circumstances
    official list of qualified tenderers;            related to the matter.



                                                                                                    129
                                                        it is not possible, on the basis of the written
2. Article 340 (3) (b) shall be applied if it is        statement of the relevant party. The Arbitration
ascertained that the approved tenderer does not         Committee for Public Procurement may reduce
fulfil the approval requirements.                       the amount of unduly high procedural costs. The
                                                        Arbitration Committee for Public Procurement
3. In determining whether a pecuniary penalty           shall state the grounds for such decision
is to be imposed and in fixing its amount, the
Arbitration Committee for Public Procurement                               Article 342
shall take into account all the circumstances
relevant in the matter, in particular the               1. If the Arbitration Committee for Public
importance of the infringement committed, the           Procurement annuls the decision of the
subject and value of the public procurement             contracting authority having concluded the
concerned, the effect of the infringement on the        procedure, then the contracting authority shall be
decision closing the contract award procedure,          entitled to make a new decision within thirty
the recurrence, if any, of the infringement of this     days following the date when the resolution
Act and the liable person’s readiness to                becomes enforceable. The contracting authority
cooperate in the proceedings. In establishing the       shall obtain the statement of all tenderers having
sum of the pecuniary penalty, it shall also be          submitted valid tenders to the effect that they
required to take into account whether the act of        uphold their tenders before making its decision.
infringement has been manifestly deliberate.
                                                        2. If the Arbitration Committee for Public
4. Pursuant to Article 340 (3) (e) and (4)–(6),         Procurement establishes in its decision pursuant
the amount of the pecuniary penalty shall not           to Article 340 (1) an infringement of the
exceed 30 percent of the value of the public            legislation applicable to public procurement or
procurement in question.                                the public contract award procedure, the
                                                        contracting authority or the party entering into
5. The amount of the pecuniary penalty                  the contract as tenderer may, within thirty days
imposed pursuant to Article 340 (4) shall not           from the service of the decision of the
exceed 30 percent of the value of the public            Arbitration Committee for Public Procurement,
procurement in question, but shall be at least two      cancel the contract concluded pursuant to the
million Forints, or, in the case of natural persons,    relevant public contract award procedure,
two hundred thousand Forints.                           provided that the infringement affected the
                                                        decision concluding the public contract award
6. The Arbitration Committee for Public                 procedure.
Procurement shall charge the fee for
administrative service and the costs incurred in             Service and publication of the decision
relation to the remedy procedure to the person
who has committed the infringement or, failing                             Article 343
any infringement, to the applicant who has
submitted an unfounded application. Where no            1. The substantial resolution as well as the
infringement has been found, the costs of remedy        decision signifying the end of the case regarding
procedures launched ex officio shall be borne by        public procurement shall be served on the
the State. Costs shall be deemed as costs of            clients, as well as on other parties having an
remedy procedures if they are incurred during           interest in the case. When the decision or the
the procedures in relation to expedient and             resolution signifying the substantial end to the
sincere procedural order (especially fees to            case is related to a public procurement realised
witnesses, experts and interpreters, translations,      by subsidies, the decision shall also be served on
costs of site inspections, costs incurred in            the organisation providing such subsidies for the
relation to the client exercising its access right to   public procurement.
the documents, the cash expenses and fees of
lawyers or legal advisers representing the client).     2. The decision not referred to in paragraph 1
                                                        shall be delivered to the client, or to any other
7. The costs of remedy procedures shall be              participant in the procedure, for whom the
generally established on the basis of the               decision establishes rights or obligations, as well
supporting documents presented by the relevant          as having a direct implication on their legal
party or other parties of the procedure, or, where      status.



130
                                                             Review of decisions of the Arbitration
3. The decision on the substance of the case                  Committee for Public Procurement
shall be published in the Public Procurement
Bulletin. The decision shall be published even if        Review of decisions of the Arbitration Committee
the     Arbitration Committee          for      Public               for Public Procurement
Procurement has excluded the public from the                   made in the course of proceedings
proceedings pursuant to Article 336 (2). The
Arbitration Committee for Public Procurement                               Article 345
shall publish the decision on the substance of the
case even if an application for a judicial review        1. Individual review of decisions of the
(Article 345) of the decision has been lodged, but       Arbitration Committee for Public Procurement
it shall also include a reference to that fact.          made in the course of the proceedings shall be
                                                         available only if this Act so provides. Review
     Remedy procedures for pre-approval cases            shall be available pursuant to this Article also
                                                         against decisions suspending the proceedings.
                    Article 344
                                                         2. Applications for a review may be submitted
1. The provisions in this Chapter shall apply to         to the Arbitration Committee for Public
remedy procedure for cases pursuant to Article           Procurement within eight days from the
219 (9) with derogations pursuant to paragraphs          communication of the decision. Upon the receipt
2–4, as appropriate.                                     of the application, the Arbitration Committee for
                                                         Public Procurement shall forward it, together
2. The applicant may lodge an appeal against             with the documents of the case, to the court
the rejection of its pre-approval application and        without delay.
its deletion from the pre-approval list. Such
appeal may be lodged within fifteen days of              3. Applications for an individual review of a
receiving written notification of the same by the        decision of the Arbitration Committee for Public
contracting entity.                                      Procurement made in the course of the
                                                         proceedings shall be decided by the Metropolitan
3.    The appeal shall state:                            Court of Budapest by way of a priority treatment
                                                         within the framework of a non-contentious
(a) the name and place of residence or                   procedure. The Court may change the decision of
    establishment of the applicant (and its              the    Arbitration Committee         for  Public
    representative);                                     Procurement. No appeal or judicial review shall
                                                         lie from the Court’s relevant order.
(b) the name and place of establishment of the
    contracting entity operating the pre-approval        4. Unless otherwise required by this Act or the
    system covered by the appeal;                        nature of the non-contentious procedure, Chapter
                                                         XX of Act III of 1952 on the Act on Civil
(c) the date of receiving the contracting entity’s       Procedure (hereinafter: CP) shall apply as
    written notification;                                appropriate to the proceedings of the court.

(d) the legal provision violated;                           Review of the decisions of the Arbitration
                                                            Committee for Public Procurement on the
(e) the motion relating to the decision of the                        substance of the case
    Arbitration   Committee       for   Public
    Procurement, and its reasons.                                          Article 346

4. In its decision, the Arbitration Committee            1. No appeal, no application for retrial, nor for
for Public Procurement shall, besides stating that       equity shall be brought against the decision of
an infringement has taken place, declare void or         the    Arbitration Committee       for     Public
vary the contracting entity’s decision.                  Procurement on the substance of the case.
                                                         Anyone whose right or legitimate interest is
                      Title 51                           being prejudiced by the decision of the
                                                         Arbitration Committee for Public Procurement
                                                         on the substance of the case, or the person or



                                                                                                      131
organisation requesting the procedure of the               Arbitration   Committee      for     Public
Arbitration Committee for Public Procurement               Procurement contains any provisions.
pursuant to Article 327 (1), shall be entitled to
bring an action before the court for its judicial      3. In the event that the parties have not
review.                                                requested that a hearing be held, the court shall
                                                       adjudicate without holding a trial. Otherwise the
2. As regards the court proceedings, Chapter           date of the trial shall be fixed without within
XX of the CP shall apply, except where                 eight days so that the trial shall be held at the
derogations defined in Articles 347–349 shall be       latest on the thirtieth day from the date of receipt
applicable.                                            by the court of the application initiating the
                                                       procedures.
                   Article 347
                                                       4. The proceedings shall be conducted by way
1. The application initiating the proceedings          of a priority treatment.
shall be submitted to the Arbitration Committee
for Public Procurement within fifteen days from        5. The court may vary the decision of the
the service of the decision. It shall also include a   Arbitration Committee for Public Procurement
statement as to whether or not the claimant            and apply sanctions pursuant to Article 340 (2)
requests a hearing to be held.                         (b) and (e)–(h), and (3)–(6).

2. The claim shall not have a suspending effect        6. If the decision concerns a public
on the enforcement of the decision, however, the       procurement implemented with support, the
Court may stay the enforcement of the decision         decision shall also be served on the organisation
at any time during the proceedings, either ex          providing the support for the public procurement
officio or in an application.                          implemented with such support.

3. Upon the receipt of the application, the                               Article 349
Arbitration Committee for Public Procurement
shall forward it, together with the documents of       1. Decisions of the court trying the case
the case and its statement in accordance with          pursuant to Article 346 at first instance shall be
Article 331 of the Code on Civil Procedure, to         open to appeals to be lodged within eight days
the court without delay. In its statement the          from the service of the decision.
Arbitration Committee for Public Procurement
shall indicate whether it requests that a hearing      2. The court of second instance shall conduct
be held.                                               the proceedings by way of a priority treatment.

                   Article 348                         3. The decision shall be served according to the
                                                       provisions of Article 348 (6).
1. Any person who is not to be granted to act
as a public procurement commissioner on                                  CHAPTER X
grounds set out in Article 320 shall be excluded
from trying the case and shall not participate in it      CIVIL ACTIONS RELATED TO PUBLIC
as a judge.                                                        PROCUREMENT

2. The court shall serve the application                                  Article 350
initiating the proceedings conforming to
legislation within eight days and at the same time     Any claim in civil law grounded on an
shall                                                  infringement of legislation applicable to public
                                                       procurement or the public contract award
(a) provide the claimant with a written                procedure shall be admissible on condition that
    statement of the Arbitration Committee for         the infringement has been stated by the
    Public Procurement;                                Arbitration Committee for Public Procurement,
                                                       or, in the course of the review of the legally
(b) inform of the possibility to intervene those       enforceable decision of the Arbitration
    interested in the public procurement case          Committee for Public Procurement, by the court.
    with regard to whom the decision of the



132
                    Article 351                                                Title 53

If tenderers only claim the reimbursement of                    Conciliators and their activities
their costs (damages) incurred in the preparation
of a tender and in relation to their participation in                   List of conciliators
a contract award procedure from the contracting
authority, it is sufficient to prove for the                                Article 353
enforcement of such a claim that
                                                        1. Only conciliators included in the list
(a) the contracting entity has violated a               managed by the Public Procurement Council
    legislative provisions applicable to public         shall be entitled to conduct conciliation
    procurement or the public contract award            procedures.
    procedure, and
                                                        2. The Public Procurement Council shall
(b) they have had a real chance of winning the          publish the list of conciliators in the Public
    contract, and                                       Procurement Bulletin and on its homepage.

(c) the infringement has adversely affected their       3. The list of conciliators shall contain the
    chance of winning the contract.                     conciliator’s

                  CHAPTER XI                            (a) name;

          GENERAL CONCILIATION                          (b) professional area in relation to which the
                                                            conciliator    undertakes     to   conduct
                      Title 52                              conciliation;

      Scope of application and purpose of               (c) the language selected by the conciliator, in
            conciliation procedures                         which the conciliator undertakes to conduct
                                                            conciliation;
                    Article 352
                                                        (d) contact address;
1. Conciliation within the meaning of this
Chapter may be initiated in any such case where         (e) date of registration in the list of conciliators.
remedies are available under Article 318 (1)–(3),
except in the case of procurement without any                 Conditions for becoming a conciliator
contract award procedure.
                                                                            Article 354
2. The objective of the conciliation procedure
is to attempt a settlement of dispute by means of       1. A person may qualify for the position of
an agreement conforming to legislation between          conciliator on the condition that he has a higher
the contracting authority and the tenderer, or, as      education degree – in case of a law degree, he
the case may be, other interested person within         will also have had to qualify for the Bar –, and
the meaning of Article 323 (1).                         proves with documents relating to the quantity
                                                        and nature of cases heard by him or in a personal
3. Participation in the conciliation procedure          interview conducted by the Public Procurement
shall be voluntary. In the event that a party           Council that he has suitable public procurement
interested in the dispute declines to take part in      expertise and at least three years of public
the conciliation procedure, the procedure cannot        procurement experience.
be pursued.
                                                        2. The following shall preclude eligibility for
4. The application of the conciliation procedure        the post of conciliator:
shall not preclude any other remedies provided
by this Act, nevertheless, no remedy procedures         (a) incompetency or limited competency
may be initiated prior to the completion of the             according to the rules laid down in civil law;
conciliation procedure.




                                                                                                        133
(b) lack of exemption from the disadvantages           the applicant does not fulfil the requirements set
    attached to previous convictions under             out in Article 354 (1) or is ineligible for reasons
    criminal law;                                      laid down in Article 354 (2), or if the applicant
                                                       has failed to supply the missing information by
(c) holding the post of public procurement             the required time-limit. The reasons for
    commissioner;                                      dismissing an application shall be given.

(d) a member of the Public Procurement                 7. The conciliator shall become entitled to
    Council.                                           conduct conciliation as of the date of registration
                                                       in the list of conciliators.
                   Article 355
                                                                     Deletion from the list
1. Applications for inclusion in the list of
conciliators shall be addressed to the Public                             Article 356
Procurement Council.
                                                       1. The Public Procurement Council shall delete
2. Applicants shall pay an administrative              the conciliator from the list of conciliators in the
service fee for their inclusion in the list of         event of
conciliators. The amount of the fee shall be
eighty thousand Forints. Exemption from the            (a) the conciliator’s failure to fulfil         the
payment of this fee shall not be granted.                  requirements set out in Article 354 (1);

3. This application shall include data pursuant        (b) a reason for ineligibility as laid down in
to Article 353 (3) (a)-(d). The applicant shall            Article 354 (2);
attach to the application originals or
authenticated copies of documents that prove           (c) permanent inability to discharge his tasks as
that the applicant fulfils the requirements set out        conciliator;
in Article 354 (1) and that he is not ineligible for
any reason laid down in Article 354 (2). The           (d) expiry of the duty as conciliator;
proof of payment of the fee referred to in
paragraph 2 shall be attached to the application.      (e) violation of or non-compliance with
                                                           obligations as conciliator [Article 361 (3)];
4. At the personal interview conducted by the
Public Procurement Council, the applicant shall        (f) resignation from the duty as conciliator;
demonstrate the required knowledge and
experience in public procurement. The Public           (g) death.
Procurement Council shall draw up minutes of
the interview.                                         2. In cases as set out in paragraph 1 (c), the
                                                       Public Procurement Council shall hear the
5. The Public Procurement Council shall rule           conciliator before deletion as required.
on the application in a decision within sixty days
of its receipt. When justified, the time-limit may     3. The term of office of conciliators shall be
be extended once for a period of maximum thirty        three years. It shall be renewable. Renewal of the
days. In the event that the application is             term of office shall be governed by the rules
incomplete, or the applicant has failed to             applicable to the inclusion in the list of
attached to the application the proof of payment       conciliators, with the derogation that the
of the fee referred to in paragraph 2, the Public      administrative service fee payable for renewal
Procurement Council shall call upon the                shall be forty thousand Forints.
applicant to supply the designated missing
information. In such cases the time-limit shall be     4. Conciliators shall not resign from their
extended with the time-limit set for supplying         office as conciliators if they participate in
such missing information.                              ongoing conciliation proceedings.

6. The Public Procurement Council shall                5. The Public Procurement Council shall rule
dismiss the application if it has established from     on deletions in a decision wherein it shall also
the documents or at the personal interview that        state reasons.



134
                                                       (a) the start date of the conciliation procedure;
6. Upon receiving the decision for his deletion
from the list of conciliators, the conciliator shall   (b) the names and places of establishment
terminate any ongoing conciliation procedures              (residence) of the parties and their
and make settlements with the parties.                     representatives;

                    Article 357                        (c) the nature of the legal dispute;

The conciliator shall notify the Public                (d) the outcome of the conciliation procedure,
Procurement Council of any changes in the                  the date of closing the conciliation
conciliator’s data or circumstances as set out in          procedure;
Article 353 (3) and Article 354, without delay
upon the change, but not later than five working       (e) the sum of the expenses charged under the
days from the date of the change. In the event             procedure.
that such change makes the conciliator no longer
able to fulfil the requirements laid down in           3. On 31 January each year, the conciliator
Article 354, the Public Procurement Council            shall report to the Public Procurement Council
shall delete him from the list of conciliators.        on the number of conciliation procedures
                                                       conducted in the previous year, the nature and
                                                       the outcome of the legal disputes.
                 Judicial remedies
                                                       4. The conciliator shall retain the documents
                    Article 358                        related to the conciliation procedure for five
                                                       years following the conclusion of the procedure.
1. No appeal shall be brought against the
Public Procurement Council’s decision for the          5. If requested by the parties, the conciliator
dismissal of the application or for the deletion,      may issue a regular copy of the documents at the
but the applicant and/or the conciliator               cost of the parties.
concerned may, save for the case referred to in
Article 356 (1) (f), within fifteen days from the              The conciliator’s remuneration
receipt of the decision, request the court to
review the decision.                                                      Article 360

2. The Metropolitan Court of Budapest shall            Conciliators shall carry out their activities for
make a decision on the application in the              remuneration. In addition to such remuneration,
framework of a non-contentious procedure               conciliators shall be entitled to reimbursement of
within sixty days from the submittal of the            such costs incurred as have been necessary and
application. The Court may vary the decision of        have been covered by supporting documents.
the Public Procurement Council. No appeal or
judicial review shall lie from the Court’s relevant
order. The procedure by the court shall be                   Supervision of conciliation activities
governed by the provisions of Chapter XX of the
Code on Civil Procedure, unless otherwise                                 Article 361
provided for by this Act or required by the nature
of the relevant non-contentious procedure.             1. The Public Procurement Council shall be
                                                       empowered to conduct, ex officio or acting on
     Conciliators’ record keeping and reporting        reports filed by parties interested in the
                      obligation                       conciliation procedure, regular or ad hoc
                                                       inspections of the activities of conciliators
                    Article 359                        registered in the list of conciliators.

1. Conciliators shall keep annual records of the       2. In the event that the inspection ascertains
conciliation procedures that they conduct.             that the conciliator has failed to observe his
                                                       obligations laid down in this Act or violated the
2.    Such records shall contain                       provisions of the Code of Ethics set out in
                                                       Article 364 (2), the Public Procurement Council



                                                                                                      135
shall admonish the conciliator of his obligation          public procurement case covered by the
to comply with this Act and the Code of Ethics.           application, and their quick contact details.

3. In the event of the repeated or grave breach       3. The Public Procurement Council shall
by the conciliator of his obligations pursuant to     transfer the application without delay to the
this Act or the Code of Ethics, or his failure to     conciliator identified in the application and to the
comply with it despite the admonition, the Public     contracting entity (or the opposing party) of the
Procurement Council shall delete the conciliator      contract award procedure covered by the
from the list of conciliators.                        application, simultaneously calling on the latter
                                                      to designate a conciliator.
                     Title 54
                                                             Setting up a conciliation chamber;
          The conciliation procedure                                   incompatibility

  The launching of the conciliation procedure                            Article 363

                   Article 362                        1. The conciliation procedure shall be
                                                      conducted by a chamber consisting of three
1. The conciliation shall be launched on              conciliators (hereinafter referred to as
application. The application shall be submitted to    ‘conciliation    chamber’).      Of    the    three
the Public Procurement Council in writing within      conciliators, one shall be designated by the
five days from the date when the time-limit for       person requesting the application of the
remedy begins to run, in accordance with Article      conciliation procedure, another one by the
323 (2)–(4). Parallel with the submittal of the       opposite party (hereinafter referred to as ‘the
application, the applicant shall notify the fact of   parties’), drawn from the list of conciliators
initiating a conciliation procedure to the            managed by the Public Procurement Council,
contracting entity and the tenderers having an        and the conciliators thus designated shall, by
interest in the contract award procedure covered      common accord, designate the third conciliator.
by the application.                                   At least of the appointed members of the
                                                      conciliation chamber shall has qualified for the
2. The applicant shall attach to the application      Bar. The president of the chamber which is to
the original or copy of the document whose            carry out the conciliation shall be selected by the
content the applicant names as evidence,              conciliators from their own number.
furthermore the application shall specify
                                                      2. Based on the accord of the parties, a single
(a) the name, place of establishment (residence)      conciliator designated by the common accord of
    and quick contact details of the applicant        the parties may also be entitled to carry out the
    and the applicant’s representative;               conciliation. Only persons with a degree in law
                                                      may be designated as single conciliators. Where
(b) the name of the conciliator invited to            the Act hereinafter refers to the conciliation
    conduct the conciliation procedure;               chamber      (president)    carrying   out    the
                                                      conciliation, it shall be construed as including
(c) the name and place of establishment of the        the single conciliator as well.
    contracting entity of the contract award
    procedure covered by the application, and         3. In the event that either party does not take
    the subject of the public procurement;            advantage of the possibility to designate a
                                                      conciliator, or if the two designated conciliators
(d) the brief description of the legal dispute and    are unable to agree on the person of the third
    the necessary evidence;                           conciliator, the conciliation procedure shall not
                                                      be pursued.
(e) the date when the infringement took place
    and when it became known to the applicant;        4. Persons proposed as conciliator and
                                                      designated conciliators shall, without delay,
(f) the names and places of establishment             make known to the parties any circumstances
    (residence), as known to the applicant, of        that might raise grounded doubts as to their
    any persons having potential interests in the     independence or impartiality. The conciliator



136
shall be obliged to decline the designation in the     in the contract award procedure covered by the
event of incompatibility pursuant to paragraph 5       conciliation procedure of the launch of the
and shall have the right to decline it in the event    conciliation procedure, informing them of the
of other unforeseen circumstances.                     possibility to participate in the conciliation
                                                       procedure, and the fixed date and place of the
5. Any conciliator who or whose relative has           hearing.
any personal or pecuniary interest in the
contested matter or in any parties concerned in        3. In the event of the launch of a conciliation
the contested matter, or who is biased for any         procedure, the contracting entity may stay its
other reason shall be excluded from the                ongoing contract award procedure and postpone
conciliation procedure, except where he has            the conclusion of the contract until the
notified this fact to the parties, none of whom,       completion of the conciliation procedure. It shall
while being aware of that fact, has raised any         notify this fact to the president of the conciliation
objection against him. It shall be construed as        chamber also. The suspension of the contract
reason for ineligibility especially if the             award procedure shall extend existing time-limits
conciliator or his relative is participating, and/or   with the period of suspension.
has participated in the contract award procedure
covered by the application as an official public                           Article 366
procurement consultant or has participated, in the
capacity of attestor, in an attestation procedure      1. Parties in the conciliation procedure may act
relating to the contracting entity of the contract     through their representatives also.
award procedure during the three years preceding
his invitation.                                        2. In the event that either party fails to appear
                                                       at the hearing, in person or through their
                   Article 364                         representative, the president of the conciliation
                                                       chamber shall terminate the conciliation
1. Conciliators shall be independent and               procedure.
impartial, they may not act as representatives of
the parties, they shall not accept any instructions    3. During the conciliation procedure the parties
in the course of their procedure. In performing        shall be ensured equal treatment and each party
their duties of contributing to an agreement           shall be given the opportunity to put forward
conforming to legislation settling the dispute         their points of view and to submit their
between the parties, they shall act impartially        pleadings. All pleadings submitted by either
and to the best of their knowledge. As regards         party to the conciliation chamber shall be
facts and data disclosed to them during the            communicated to the other party also.
conciliation procedure, they shall preserve full
secrecy, even after the procedure has been                                 Article 367
closed.
                                                       1. The conciliation chamber shall endeavour to
2. Conciliators’ behaviour exhibited during the        reach an agreement between the parties in
conciliation shall be governed by the Code of          accordance with the law in their legal dispute.
Ethics developed by Public Procurement
Council.                                               2. Minutes shall be drawn up of the
                                                       conciliation procedure and the outcome of the
     Conducting the conciliation procedure             conciliation, and a copy shall be delivered to
                                                       each party.
                   Article 365
                                                       3. The conciliation procedure shall also
1. The president of the conciliation chamber           terminate at the initiative of either party if the
shall fix a date and place for the hearing without     party concerned revokes its application or time-
delay upon his election and the receipt of the         limit fixed for the completion of the conciliation
application pursuant to Article 362.                   procedure [Article 368 (1)] has expired.

2. The president of the conciliation chamber           4. In the event that the Arbitration Committee
shall promptly, by an accelerated procedure,           for Public Procurement acts ex officio in relation
notify the tenderers and other interested persons      to the contract award procedure covered by the



                                                                                                       137
conciliation procedure or in the event that a         conciliation procedure. The contracting entity
person not participating in the conciliation          may decline to take part in the conciliation
procedure has requested or initiated a remedy         procedure. In such an event the conciliation
procedure, the contracting entity shall notify this   procedure cannot be pursued and the European
fact to the president of the conciliation chamber.    Commission shall notify the applicant of the
In such cases the conciliation chamber closes the     same.
conciliation procedure.
                                                      2. In the event that the conciliation procedure
5. Unless otherwise agreed, the parties shall         can be pursued, the European Commission shall
bear an equal share of the costs of the               designate a conciliator selected from the list of
conciliation procedure, and shall bear their own      conciliators managed by the Commission and
costs incurred in the procedure. Tenderers and        notify this to the contracting entity and the
other interested persons intervening in the           person requesting the conciliation procedure
conciliation procedure pursuant to Article 365        (hereinafter referred to as ‘the parties’). Each
(2) shall bear their own costs incurred in the        party shall designate an additional conciliator
procedure.                                            drawn from the aforementioned list, and shall at
                                                      the same time declare whether it accepts or
       Closing the conciliation procedure             rejects the conciliator designated by the
                                                      European Commission. The conciliation shall be
                   Article 368                        conducted by three conciliators.

1. The conciliation procedure shall be closed         3. The conciliators shall endeavour to reach an
within eight days from the submittal of the           agreement between the parties which is in
application pursuant to Article 362 (1).              accordance with the law. They shall report to the
                                                      European Commission on the agreement
2. Based on the conciliation procedure, the           achieved and on any facts disclosed to them
contracting entity may decide to call off its         during the procedure.
contract award procedure.
                                                      4. The conciliators may invite not more than
                 CHAPTER XII                          two experts to advise them in the procedure.
                                                      Either party or the European Commission shall
          SPECIAL CONCILIATION                        be entitled to reject any person being invited as
                                                      an expert to take part in the procedure.
                   Article 369
                                                      5. During the conciliation procedure the parties
1. Any tenderer or other interested person            as well as any other tenderers participating in the
whose right or legitimate interest has been or        relevant contract award procedure shall have the
risks being harmed by an infringement of this         right to make representations either orally or in
Act or a failure to act committed by a contracting    writing.
entity within the meaning of Article 162 in
relation to its procedure within the meaning of       6. Both parties shall have the right to terminate
Chapter V may request the application of the          the conciliation procedure at any time.
conciliation procedure provided for in this
Chapter.                                              7. Unless otherwise agreed, the parties and any
                                                      other tenderers and interested persons
2. The request shall be submitted in writing to       intervening under paragraph 5 shall bear their
the Public Procurement Council or to the              own costs incurred in relation to participation in
European Commission. The Public Procurement           the conciliation procedure. The parties shall bear
Council shall, without delay, forward the request     an equal share of the costs of the conciliation
it has received to the European Commission.           procedure.

                   Article 370                                           Article 371

1. Upon the European Commission’s inquiry,            1. Where any of the participants of the
the contracting entity shall notify the               conciliation procedure is initiating remedy
Commission if it intends to take part in the          procedure covering the same case or learns of



138
such proceedings, it shall notify it to the            days from the receipt of the request, or thirty
conciliators.                                          days in the case of a contracting entity within the
                                                       meaning of Article 162.
2. Where a person not participating in the
conciliation procedure has initiated the remedy        3. The       contracting      entity   shall   give
procedure, the contracting entity shall notify this    notification, in particular, whether
fact to the conciliators. The conciliators shall
inform the person initiating the remedy                (a) the infringement has been remedied, or
procedure of the conciliation procedure that is
going on and of the possibility to take part in that   (b) the infringement has not been remedied, or
procedure. The person initiating the remedy
procedure shall be required to indicate within a       (c) it has suspended its contract award
time-limit fixed by the conciliators whether he            procedure in question, or the Arbitration
intends to participate in the conciliation                 Committee for Public Procurement has
procedure. If that person refuses to participate in        stayed the contract award procedure as a
the conciliation procedure, the conciliators may           provisional measure in the course of remedy
decide, acting by a simple majority, to terminate          procedures.
the conciliation procedure if they consider that
the participation of the tenderer or the other         4. The notice in accordance with paragraph 3
interested person in question is necessary to          (b) shall give reasons. Where the reason for
resolve the dispute. They shall notify the             failure to remedy the alleged infringement is that
European Commission of their decision and its          this infringement is already the subject of a
reasons.                                               remedy procedure, the Public Procurement
                                                       Council shall, without delay, inform the
3. The application of the conciliation procedure       European Commission of the decision delivered
shall not preclude any other remedies provided         in the remedy procedure.
by in this Act.
                                                       5. In cases within the meaning of paragraph 3
                                                       (c) the Public Procurement Council shall also
                                                       notify, without delay, the European Commission
                 CHAPTER XIII                          of the outcome of the contract award procedure
                                                       and/or the remedy procedures and the question of
      PROCEDURE OF THE EUROPEAN                        remedying the reported infringement.
             COMMISSION
                                                                        PART EIGHT
                   Article 372
                                                        THE PUBLIC PROCUREMENT COUNCIL
Where the European Commission considers that
a manifest infringement of Community law in                     The legal status of the Council
the field of public procurement has been
committed during a contract award procedure                               Article 374
falling within the scope of Part Two, it may
initiate procedures pursuant to Article 373.           1. For purposes of enforcing the objectives set
                                                       out in this Act, a Public Procurement Council
                   Article 373                         (hereinafter referred to as ‘Council’) shall
                                                       operate, as subordinated to Parliament only.
1. The European Commission shall notify the
perceived infringement to the contracting entity       2. The Council shall operate as an
also, calling upon it to remedy the infringement       autonomously reporting central budgetary
by the time of the conclusion of the contract.         authority subordinated to Parliament, with
                                                       general powers within its scope of
2. The contracting entity shall be required to         responsibilities as laid down in this Act. Its seat
report on the notified infringement to the Public      shall be in Budapest.
Procurement Council in such a way as to allow
the Public Procurement Council to forward it to        3. The Council’s budget shall be appropriated
the European Commission within twenty-one              separately within the annual central Budget. Any



                                                                                                      139
regroupings against this appropriation during the
year shall be subject to approval by Parliament.     (d) the person designated jointly by the national
                                                         associations of local governments;
      Members and officers of the Council
                                                     (e) the person designated jointly by the national
                   Article 375                           economic      chambers,      the     national
                                                         professional chambers and the Hungarian
1. The Council shall have nineteen members.              Academy of Sciences.
Individual objectives in the public interest,
contracting entities and tenderers shall be each     4. The general interests of tenderers in contract
represented by an equal number of members            award procedures shall be represented in the
within the Council.                                  Council by the six persons designated by the
                                                     national employers’ interest representation
2. The enforcement of the principles of this Act     bodies and the national economic chambers.
and other objectives in the public interest shall
be the responsibility of persons designated by the   5. The president of the Council shall become a
following bodies or persons:                         member of the Council even if he was not
                                                     designated from among the members. Where the
(a) the prosecutor general;                          president of the Council was selected from
                                                     among members of the Council, the president
(b) the president of the Office of Economic          shall discontinue to represent the general
    Competition;                                     objectives and interests of the person (persons)
                                                     designating him, and the person (persons)
(c)100    the     Minister       responsible   for   designating him shall be entitled to designate a
     Agricultural policy;                            new member to the Council. The designating
                                                     person (persons) shall not exercise against the
(d)101 the Minister responsible for economic         president of the Council their right as laid down
     policy;                                         in Article 377 (6) (b) and (7).

(e)102    the Minister responsible for               6. The Council member shall report to the
     Environmental Protection;                       person (persons) designating him on his
                                                     activities within the Council for the achievement
(f)103 the Minister responsible for Justice.         of objectives he has to enforce and general
                                                     interests he represents, and also the objectives of
3. The general interests of contracting entities     this Act, as well as the enforcement of these in
of contract award procedures shall be represented    the field of public procurement.
in the Council by persons designated by the
following bodies or persons:                         7.105 The president, vice-president and
                                                     member of the Council shall make a
(a) two persons designated by the Government;        declaration of property according to the
                                                     provisions concerning the members of the
(b) the person designated by the Minister of the     Parliament, for the first time, within 30 days
    Prime Minister’s Office;                         of its designation. As to the registry, control
                                                     and maintenance of the declaration of
(c)104     the person designated by the person       property, the provisions concerning the
     supervising    healthcare    and  pension       registry, control and maintenance of the
     insurance administration bodies;                declaration of property of the members of the
                                                     Parliament shall apply.
100
    This provision entered into force on 1 January
2007.                                                                   Article 376
101
    This provision entered into force on 1 January
2007.
102                                                  104
    This provision entered into force on 1 January       This provision entered into force on 1 January
2007.                                                2007.
103                                                  105
    This provision entered into force on 1 January       This provision entered into force on 1 January
2007.                                                2008


140
1. The following persons shall not be eligible         4. The Council shall exercise employer rights
for membership in the Council:                         over the president of the Council, and the
                                                       president shall make the statement of his
(a) members of Parliament;                             incompatibility (Article 392 (6)) to the Council.

(b) have previous convictions under criminal           5. The Council shall elect a vice-president
    law.                                               from among the members with a two-third
                                                       majority of the members present.
2. The term of office of members shall be two
years at least.                                        6. The term of office of the president of the
                                                       Council shall end in the event of
3.106 The term of office of the president, vice-
president and member shall be terminated on            (a) the expiry of the term;
the ground of conflict of interest, if they deny
to fulfil the obligation of making the                 (b) recalling;
declaration of property, fail to fulfil, or give
false data, fact of relevance in their                 (c) resignation;
declaration of property.
                                                       (d) the occurrence of circumstances as set out in
4. 107   The rules, except as laid down in                 Article 376 (1);
paragraphs 1 to 3, for designating and recalling
members shall be set by the designating bodies         (e) becoming undeserving           or   permanently
in such a way as to guarantee the sustained                unsuitable for the office;
operability of the Council.
                                                       (f) death;
5.108 Members shall be required to perform their
designated tasks in person.                            (g)110 establishment       of     the   conflict    of
                                                            interest.
                   Article 377
                                                       7.111 In cases within the meaning of (6) (e) and
1. The Council shall decide on the appointment         (g) the Council shall state the discontinuation of
of the president of the Council for five years with    the term of office with the vote of two thirds of
a two-thirds majority of members present. The          the members present and with attention to the
appointment shall be renewable on one occasion.        opinion of the bodies or persons designating the
                                                       person in question.
2. Act XXIII of 1992 on the Legal Status of
Civil Servants shall be applicable to the president                        Article 378
of the Council with the derogations set out in this
Act.                                                   1.    The president of the Council shall

3.109 The president of the Council shall be entitled   (a) represent the Council;
to salary and other benefits as due to senior state
secretaries.                                           (b) if invited, attend sessions of Parliament and
                                                           of its committees, and present the Council’s
                                                           annual report;
106
    This provision entered into force on 1 January
2008                                                   (c) issue a president’s information bulletin on
107
    This amendment entered into force on 1                 practical information related to contract
January 2008                                               award procedures;
108
    This amendment entered into force on 1
January 2008
109
    Former Paragraph (3) was repealed by Article
                                                       110
77 (5) of Act LVII of 2006. New Paragraph (3)              This provision entered into force on 1 January
was set out in Article 1 of Act LVIII of 2006, the     2008
                                                       111
provision entered into force on 11 July 2006, but          This provision entered into force on 1 January
applicable from 1 July 2006.                           2008


                                                                                                          141
(d) initiate a vote by accelerated procedure in      (g) manage and publish the list of official public
    accordance with the provisions of the                procurement consultants;
    organisational and operational regulations of
    the Council in order to make decisions on        (h) manage and publish the official list of
    matters allowing of no delay in periods              approved tenderers, determine approval
    between sessions;                                    criteria and methods of attestation;

(e) exercise employer’s rights over the              (i) publish the list of accredited attestors; shall
    secretary-general of the Council (hereinafter        be authorised to supervise the activities of
    referred to as ‘secretary-general’) and the          accredited attestors;
    president and deputy president of the
    Arbitration    Committee      for     Public     (j) make arrangements for editing the “Public
    Procurement.                                         Procurement Bulletin — Official Journal of
                                                         the Public Procurement Council”112 and the
2. The vice-president shall have full powers to          verification and publication of notices
substitute for the president of the Council in the       related to the contract award and design
absence of the latter.                                   contest procedures; publish the decisions of
                                                         the Arbitration Committee for Public
           The powers of the Council                     Procurement and final decisions by the court
                                                         on the subject of the review of these, the list
                   Article 379                           of tenderers excluded from participation in
                                                         contract award procedures (including the
1.   The Council shall                                   term of such exclusion), recommendations
                                                         within the meaning of point (c), and other
(a) monitor the enforcement of the rules                 information and statements related to
    stipulated in this Act, and initiate with            contract award procedures;
    competent persons the making or
    amendment of legislation related to public       (k) monitor the amendment and delivery of
    procurement;                                         contracts (Article 307 (4)113) concluded
                                                         pursuant to contract award procedures;
(b) review draft legislation related to public
    procurement and the operation of the             (l) keep a registry of contracting entities and
    Council;                                             contract award procedures, including the
                                                         consideration, payable pursuant to the
(c) prepare, within the framework of legislation         contract award procedure, for subjects of the
    related     to      public    procurement,           public contract award procedure, projected
    recommendations for the implementation of            per unit; prepare annual consolidated
    the same;                                            statistical reports;

(d) establish the headcount of the Arbitration       (m) supervise, coordinate and facilitate the
    Committee for Public Procurement;                    training and further training of persons
                                                         participating in the contract award
(e) appoint or recall the president and vice-            procedure;
    president of the Arbitration Committee for
    Public Procurement and the public                (n) maintain      relationships  with    public
    procurement commissioners; judge cases of            procurement bodies of other states and with
    incompatibility    related    to    public           international organisations;
    procurement commissioners;
                                                     (o) approve its own organisational and operating
(f) manage and publish the list of conciliators          regulations, and other internal regulations
    within the meaning of Chapter XI; be
    authorised to supervise the activities of the    112
                                                         This provision entered into force on 11
    conciliators; develop the Code of Ethics         January 2007.
    relating to the conciliators;
                                                     113
                                                       This provision entered into force on 7 July
                                                     2007.


142
    relating to its operations, especially the        (f) if he is authorised to conduct the activity
    procedures for launching remedy procedure             specified in Article 5 (1) and (2) of the Act
    for the review of notices, and also its draft         XI of 1998 on Legal Practitioners;
    budget and annual budget report;
                                                      (g) the name of the contracting authority, in
(p) perform other responsibilities designated to          case of an official public procurement
    it by this Act and other law.                         consultant who is in legal relationship with
                                                          respect to employment with the contracting
2. Each year, the Council shall report to                 authority.
Parliament on its experience on the fairness and
transparency of public procurement processes,         4. In the case of organisations, the list shall
and on its activities. The report shall make          contain
statements regarding the adequacy of the rules of
this Act to the requirements constituted by the       (a) the name, place of establishment, registry
economic situation and the public finance                 number and contact address of the
regulations, and in what way accordance with              organisation;
these can be ensured. For information, the
Council shall send the report to the State Audit      (b) the details of the person or persons within
Office also.                                              the meaning of Article 11 (3) pursuant to
                                                          paragraph 3 (a)-(d) and (f);
3. The publication of the Public Procurement
Bulletin shall be governed by the provisions of       (c) the date of the organisation’s registration in
the Act on Legislation and its implementing               the list.
legislation applicable to the publication of the
Hungarian Bulletin and other official journals.       5. The official public procurement consultant is
                                                      entitled to certify his activities – in harmony with
 List of official public procurement consultants      the experience required for the registration on the
                                                      list - conducted since the last announcement once
                   Article 380                        a year with the content in accordance with the
                                                      relevant legislation to the Public Procurement
1. Only such public procurement consultants as        Council, who completes the list with the data
are registered on the list managed by the Council     above. An administrative service fee shall be
shall be entitled to conduct activities as official   paid for this announcement. The fee is HUF
public procurement consultants pursuant to this       30.000. No exemption shall be granted from the
Act.                                                  payment of the fee.

2. The Council shall publish the list of official     6.114     The Public Procurement Council shall
public procurement consultants in the Public          publish on its homepage in the list of official
Procurement Bulletin and on its homepage.             public procurement consultants those activities
                                                      conducted by the official public procurement
3. The list shall contain the official public         consultant about which the official public
procurement consultants’                              procurement consultant certifies his experience
                                                      as an official public procurement consultant with
(a) name;                                             the documents on the completion of these
                                                      activities; or those activities which were
(b) the range of subject-matter of procurement,       announced and certified in accordance with
    in relation to which he undertakes official       paragraph 5 by the official public procurement
    public procurement consultation;                  consultant to the Public Procurement Council
                                                      following his register on the list.
(c) university degree;
                                                                         Article 381
(d) contact address;

date of registration in the list of official public
    procurement consultants;                          114
                                                         This paragraph entered into force on 1 July
                                                      2006.


                                                                                                     143
1. As a precondition for designation, official        5. The Council shall reject the application if it
public procurement consultants shall be required      may be established on the basis of the documents
to fulfil the conditions set out in Article 11.       that the applicant does not fulfil the conditions
                                                      set out in Article 381 (1) or is subject to a reason
2. The following shall preclude eligibility for       for ineligibility as laid down in Article 381 (2),
the post of official public procurement consultant    or has failed to meet his obligation to supply
                                                      missing information by the time-limit. The
(a) incompetency or limited competency                rejection of an application shall give reasons.
    according to the rules laid down in civil law;
                                                      6. The official public procurement consultant
(b) lack of exemption from the disadvantages          shall become entitled to act in this capacity as of
    attached to previous convictions under            the date of their registration on the list.
    criminal law;
                                                                         Article 383
(c) post of public procurement commissioner;
                                                      1. The Council shall strike off the official
(d) membership in the Public Procurement              public procurement consultant from the list in
    Council.                                          case of

                   Article 382                        (a) his non-compliance with the conditions set
                                                          out in Article 381 (1);
1. Registration in the list of official public
procurement consultants shall be applied for in       (b) any reason for ineligibility as laid down in
writing at the Council.                                   Article 381 (2);

2. Applicants shall pay an administrative             (c) his becoming permanently unable to carry
service fee for their inclusion in the list of            out responsibilities as official public
conciliators. The amount of the fee shall be              procurement consultant;
eighty thousand Forints. Exemption from the
payment of this fee shall not be granted.             (d) the establishment, with a final decision in a
                                                          public procurement matter, that the official
3. Such application shall specify the data set            public     procurement       consultant    has
out in Article 380 (3) (a)-(d), (f)-(g) and (4)           deliberately infringed the legislation
(a)-(b). Applicants shall attach to the application       applicable to public procurement or the
originals or authenticated copies of documents            public contract award procedure or other
that certify that the applicant complies with the         legislation while acting in this capacity;
conditions set out in Article 381 (1) and is not
subject to any reason for ineligibility as laid       (e) a request to this effect by the official public
down in Article 381 (2). The proof of payment of          procurement consultant;
the fee referred to in paragraph 2 shall be
attached to the application.                          (f) death or, in the case of organisations,
                                                          discontinuation.
4. Within thirty days of receiving the
application, the Council shall make a ruling on it    2. The official public procurement consultant
in a decision. When justified, the time-limit may     shall be entitled to apply for deletion from the
be extended once for a period of thirty days at       list only if he is not participating in an ongoing
most. In the event that the application is            contract award procedure.
incomplete, or the applicant has failed to
attached to the application the proof of payment      3. The Council shall rule on the deletion in a
of the fee referred to in paragraph 2, the Council    decision that gives reasons.
shall call upon the applicant to supply the
designated missing information. In such cases         4. Upon receiving the decision for his deletion
the time-limit shall be extended with the time-       from the list, the official public procurement
limit specified for the supply of the missing         consultant shall, without delay, discontinue his
information.                                          ongoing consulting activities and make
                                                      settlements with the parties.



144
                                                       non-contentious procedure within sixty days
5. The official public procurement consultant          from the lodging of the application. The court
who was struck off from the list by the Council        may vary the decision of the Council. No appeal
pursuant to paragraph 1 (d), shall be entitled to      or judicial review shall lie from the Court’s
apply for re-registration in the list only after       relevant order. The proceedings of the court shall
three years from such deletion.                        be governed by the provisions of Chapter XX of
                                                       the Code on Civil Procedure as appropriate,
6. The register of the list is in force for three      unless otherwise stipulated in this Act or
years from the date of registration. 115 The           required by the nature of the non-contentious
registration in the list is renewable. The renewal     procedure.
of the registration shall be governed by the rules
applying for the registration in the list, with the            Official list of approved tenderers
exception that the administrative service fee is
HUF 40.000, and the official public procurement                            Article 386
consultant shall only certify that he has proved
experience in public procurement for the three         1. The Council shall manage the official list of
years preceding his new application in                 approved tenderers and publish it in the Public
accordance with the term specified in the              Procurement Bulletin and on its homepage.
relevant legislation. If the official public
procurement consultant acted in accordance with        2. The official list shall contain the approved
Article 380 (5) during the three years preceding       tenderer’s
his new application and the number of
certificates submitted by him equals the number        (a) name, place of establishment (residence);
set out in the relevant legislation, the experience
already proved shall not be proved again.              (b) category within the list;

                   Article 384                         (c) date of registration in the list.

The official public procurement consultant shall       3. Being the organisation managing the official
be required to notify to the Council any changes       list of approved tenderers, the Council shall be
in his data or circumstances pursuant to Article       required to send its address to the rest of the
380 (3)–(4) and Article 381, without delay but         member states of the European union and to the
not later than five working days from the              European Commission.
occurrence of such change. If due to such change
the official public procurement consultant no                              Article 387
longer fulfils the conditions set out in Article
381, the Council shall delete him from the list.       1. As a prerequisite for qualification as
                                                       approved tenderer, applicants shall fulfil the
                   Article 385                         approval criteria defined and published by the
                                                       Council and shall certify the same in the manner
1. No appeal shall lie from the Council’s              provided for (Article 12).
decision for the rejection of the application or for
the deletion, but the applicant or the official        2. Registration in the official list of approved
public procurement consultant concerned may            tenderers shall be applied for in writing to the
lodge an application for the judicial review of the    Council. Applicants may request their approval
decision within fifteen days of the receipt of the     and registration in the official list at any time,
decision.                                              upon the presentation of the required data and
                                                       facts, and the supply of the required supporting
2. The application shall be decided by the             documents, statements and other documents.
Metropolitan Court within the framework of a
                                                       3. The applicant may also fulfil the approval
115
   In accordance with Article 132 (6) of Act of        criteria under the scope of Articles 66-68 and
CLXXII of 2005 the above mentioned three               Article 69 (1)-(3) by relying on the resources of
years period shall be counted from 15 January          other organisation(s). In this case as well, the
2006 in the case of official public procurement        applicant shall prove that the resources in
consultants admitted before 15 January 2006.           accordance with the approval criteria will be



                                                                                                     145
available to him for the period he is included in          tenderer in question be struck off the official
the list of approved tenderers. The certification is       list of approved tenderers;
realised by the submission of the declaration of
the organisation in question to assume liability.      (d) request to this effect by the approved
                                                           tenderer;
4. Inclusion in the list of approved tenderers
shall be subject to the payment of an                  (e) discontinuation or death.
administrative service fee. The amount of the fee
shall be one hundred fifty thousand Forints.           2. An approved tenderer shall be entitled to
Exemption from the payment of this fee shall not       apply to be struck off the list only if he is not
be granted. The proof of payment of the fee            participating in an ongoing contract award
referred to in paragraph 2 shall be attached to the    procedure.
application.
                                                       3. The Council shall rule on the deletion in a
5. The application shall be ruled on by the            decision that gives reasons.
Council in a decision within sixty days upon
receipt of the application. When justified, the        4. Upon receiving the decision about being
time-limit may be extended once for a period of        struck off the official list, the approved tenderer
maximum thirty days. In the event that the             shall, without delay, notify this to the contracting
application is incomplete, or the applicant has        entity, if he is participating in an ongoing
failed to attached to the application the proof of     contract award procedure.
payment of the fee referred to in paragraph 2the
Council shall call upon the applicant to supply                            Article 389
the designated missing information. In such
cases the time-limit shall be extended with the        The approved tenderer shall be required to notify
time-limit specified for the supply of the missing     to the Council any changes in his data or
information                                            circumstances relating to the approval criteria,
                                                       without delay but not later than five working
6. The Council shall reject the application if it      days from the occurrence of such change. If due
may be established on the basis of the documents       to such change the approved tenderer no longer
that the applicant does not fulfil the approval        fulfils the approval criteria, the Council shall
conditions or has failed to meet his obligation to     delete him from the list.
supply missing information by the time-limit.
The rejection of an application shall give                                 Article 390
reasons.
                                                       1. In the event that the Council modifies
7. The applicant shall become an approved              approval criteria and modes of certification, it
tenderer as of the date of registration in the         shall be required to re-announce the approval
official list.                                         criteria and to inform approved tenderers already
                                                       registered in the official list and persons
                                                       submitting applications simultaneously, directly
                    Article 388                        and in writing.

1. The Council shall strike the approved               2. In the event that approval criteria are
tenderer off the official list in the event of         modified, approved tenderers already registered
                                                       in the official list shall also certify, in the manner
(a) failure to fulfil the approval criteria;           required, their conformity with the new or
                                                       modified approval criterion. Approved tenderers
(b) exclusion from participation in contract           shall be called upon to do so in the framework of
    award procedures ordered by a final decision       information provision provided for in paragraph
    in remedy procedure related to public              1. Where a submitted application is in the
    procurement;                                       process of evaluation, the Council shall call upon
                                                       the applicant to supply the missing information,
(c) a final decision in remedy procedure related       as required.
    to public procurement has ordered that the
                                                                           Article 391



146
                                                                          Article 393
1. No appeal shall lie from the Council’s
decision for the rejection of the application or for   1. The Council shall not conduct any other
the deletion, but the applicant or the approved        business       activities, accept   pecuniary
tenderer concerned may lodge an application for        contributions from, or grant the same to, any
the judicial review of the decision within fifteen     entities or persons.
days of the receipt of the decision.
                                                       2. The Council shall be entitled to collect the
2. The application shall be decided by the             fee for administrative service within the meaning
Metropolitan Court within the framework of a           of Article 324 (3), Article 355 (2), Article 382
non-contentious procedure within sixty days            (2) and Article 387 (3), pecuniary penalties of a
from the lodging of the application. The court         procedural nature within the meaning of Article
may vary the decision of the Council. No appeal        338 and pecuniary penalties within the meaning
or judicial review shall lie from the Court’s          of Article 440 (3) (e) and (4)–(6), payable on the
relevant order. The proceedings of the court shall     Council’s account No 10032000-01720361-
be governed by the provisions of Chapter XX of         00000000 held with the treasury116 by cash
the Code on Civil Procedure, unless otherwise          transfer or transfer order.
provided for by this Act or required by the nature
of the relevant non-contentious procedure.             3. If the application is rejected or withdrawn,
                                                       the administrative service fee payable pursuant
                                                       to Articles 324 (3), 355 (2), 382 (2) or 387 (3)
          The operation of the Council                 shall not be reimbursed.

                   Article 392                         4. Fifty percent of the full fee, of the pecuniary
                                                       penalty of a procedural nature and of the
1. The Council shall convene its sessions as           pecuniary penalty shall constitute the Council’s
required, but at least on six occasions every year.    own revenues, with the remaining fifty percent
                                                       being the central revenue of the state budget in
2. The Council shall have a quorum if two              accordance with the settlement rules laid down in
thirds of its members are present.                     paragraph 6.

3. The Council shall make decisions, with the          5. The administrative service fees payable
exceptions within the meaning of Article 377 (1),      pursuant to paragraph 2 and the amount of the
(5), (7) and Article 395 (4), with a simple            procedural fine and of the pecuniary penalty
majority vote.                                         retained by the Council shall be used to cover the
                                                       costs incurred by the Council in the course of
4. Members of the Council who are related to           performing its duties.
persons affected in the matter shall not
participate in the preparation and passing of the      6. The Council shall keep separate records of
decision of the Council on the subject of Article      the administrative service fee, procedural fine
379 (1) (e).                                           and pecuniary penalty payments received, for the
                                                       purpose of monitoring compliance with the fee
5. Members of the Council or employees of the          payment obligation. Taking into account Article
Council’s organisation who have personal or            339 (1) and Article 339 (2) (q) of the Code on
property interest in persons covered by the            Civil Procedure, Article 345 (3) and Article 348
procedure shall not participate in the Council’s       (5) of this Act, the Council shall make
procedures pursuant to Articles 355–356,               settlements of its revenues, as of December 31,
Articles 382–383 or Articles 387–388.                  from pecuniary penalties in the current year as
                                                       reduced with the amount of its repayment
6. Members of the Council shall be required to         obligations incurred in the current year. The
notify to the president if they are or have become     maintenance of records on fees, procedural fine
subject to reasons for incompatibility within the      and pecuniary penalty, their handling and
meaning of paragraphs 4 and 5, and shall be            accounting shall be governed by the legislation
required to discontinue his participation in the
ongoing procedure.                                     116
                                                         This provision entered into force on 1 January
                                                       2007.


                                                                                                    147
regulating the reporting and accounting                                 Article 395
requirements of budget-driven economic
operators.                                           1. A Arbitration Committee for Public
                                                     Procurement (hereinafter referred to as
7. To the administrative service fee referred to     ‘Arbitration Board’), operating alongside the
in paragraph 2 Act A XCIII of 1990 on Duties         Council, shall be responsible for arranging
(hereinafter: AD) shall apply as follows:            remedy procedures related to any infringements
                                                     or disputes related to public procurement or
(a) its provisions set out in Article 3 (4) and      design contest procedures.
    Article 28 (2) and (3) shall apply to fee
    payment obligation;                              2. The efficient operation of the Arbitration
                                                     Committee shall be ensured against the
(b) the first sentence of Article 31 and the         Council’s budget.
    provisions set out in Article 31 (2), (4), (5)
    and shall apply to the establishment of          3. The Arbitration Committee shall be
    entities subject to fee payment;                 constituted     by      public      procurement
                                                     commissioners in a number determined by the
(c) its provisions set out in Article 86 shall       Council and employed as civil servants,
    apply to prescription                            appointed and recalled by the Council.

as appropriate, with the derogation that the duty    4. The president and the vice-president of the
referred to in the AD shall be interpreted as fee.   Arbitration Committee shall be appointed for
                                                     five years by the Council from among the public
        The organisation of the Council              procurement commissioners with the vote of two
                                                     thirds of the members present. The person of the
                   Article 394                       vice-president shall be recommended by the
                                                     president of the Arbitration Committee. The
1. The coordination of Council activities, the       president and vice-president of the Arbitration
preparation and implementation of its decisions,     Committee can be re-elected.118
and the data collection, recording and
administration activities required for the same      5.119 The Chairman of the Arbitration Committee
shall be the responsibility of the Council’s         shall be entitled to salary and other benefits as
Secretariat. The Secretariat shall be headed by      due to state secretaries. The Deputy Chairman
the secretary-general.                               shall be entitled to salary as due to heads of
                                                     departments.
2. The secretary-general and employees of the
Secretariat shall be civil servants with an                             Article 396
employment relationship with the Council. The
secretary-general shall exercise employer rights     1. The president of the Arbitration Committee
over employees of the Secretariat. The secretary-    shall
general shall be entitled to salary and other
benefits as due to state secretaries.117             (a) manage the      work    of   the   Arbitration
                                                         Committee;
3. The Council shall operate an Editorial
Committee under the Secretariat to perform its
responsibilities related to the edition of the       118
                                                         Former fourth and fifth sentence of Paragraph
Public Procurement Bulletin.                         (4) was repealed on 1 July 2006 by Paragraph (5)
                                                     of Article 77 of Act LVII of 2006. The new third
                                                     sentence of Paragraph (4) was set out by Article
117
    Former third sentence of Paragraph (2) was       2 of Act LVIII of 2006, the provision entered
repealed on 1 July 2006 by Paragraph (5) of          into force on 11 July 2006, but applicable from 1
Article 77 of Act LVII of 2006. The new third        July 2006.
                                                     119
sentence of Paragraph (2) was set out by Article         Set out by Article 3 of Act LVIII of 2006, the
2 of Act LVIII of 2006, the provision entered        provision entered into force on 11 July 2006, but
into force on 11 July 2006, but applicable from 1    applicable from 1 July 2006.
July 2006.


148
(b) represent the Arbitration Committee;             professional certificate in public administration
                                                     and/or law.
(c) exercise employer rights over the public
    procurement commissioners, except the            2. As regards the requirement for professional
    vice-president;                                  certificate provided for in paragraph 1, the time-
                                                     limits laid down in the Ktv. shall be applied as
(d) prepare and submit for approval to the           appropriate.
    Council the organisational and operating
    regulations of the Arbitration Committee;        3. With the exception of scientific, teaching,
                                                     artistic, publisher’s reader’s, editorial or legally
(e) verify that    procedural    time-limits   are   protected      intellectual    activities,    public
    observed;                                        procurement commissioners shall not accept
                                                     other assignments, shall not have other gainful
(f) make arrangements for the publication of the     occupations, shall not be members under
    decisions of the Arbitration Committee.          obligation to make personal contribution, chief
                                                     officers or supervisory board members in
2. The vice-president shall have full powers to      business enterprises.
substitute for the president of the Arbitration
Committee in the absence of the latter.              4. The following persons shall be precluded
                                                     eligibility for the post of public procurement
                   Article 397                       commissioner:

1. The president, vice-president and members         (a) members of Parliament, members of local
of the Council, the secretary-general, the               government, mayors and chamber officers;
employees of the Secretariat and the public
procurement commissioners or persons having          (b) persons holding an interest beyond twenty
held such positions or conducted such activities,        five percent, and/or twenty five million
shall handle as confidential all service and             Forints in a business enterprise.
business secrets disclosed to them in the course
of discharging their responsibilities.                                  Article 400

2. On the invitation of the president of the         1. Public procurement commissioners shall be
Council or a public procurement commissioner,        classified in accordance with the promotion rules
all entities shall be required to give information   stipulated in the Ktv. with the derogation that
on matters related to public procurement within      they shall be entitled to salary due under the
fifteen days.                                        classification two levels higher than their own
                                                     classification.
     The legal status of public procurement
        commissioners as civil servants              2. Public        procurement       commissioners
                                                     classified as chief councillor shall be entitled to
                   Article 398                       head of department salary, and public
                                                     procurement commissioners classified as senior
The legal status of public procurement               chief councillor shall be entitled to deputy
commissioners as civil servants shall be             assistant under-secretary salary.
governed by Act XXIII of 1992 on the Legal
Status of Civil Servants (hereinafter referred to    3.120
as ‘Ktv.’) with the derogations provided for in
this Act.                                            4. The legal status of public procurement
                                                     commissioners as civil servants may terminate
                   Article 399                       with dismissal other than provided for in the Ktv.
                                                     in the event that the Council reduces the
1. One may qualify for the position of public        headcount of the Arbitration Committee.
procurement commissioner on condition that he
has a higher education degree and at least three
years of work experience, as well as a               120
                                                        This provision cease to be in force from 1
                                                     January 2008.


                                                                                                     149
5. In the event that the public procurement
commissioner’s mandate terminates, he shall be        1. For the purposes of Chapter VI of this Act,
re-classified in accordance with the rules of the     national public procurement value thresholds
Ktv.                                                  shall be the following from 1 January 2004 to 31
                                                      December 2004:
6. Pursuant to Article 38 (1) of the Ktv., the
public procurement commissioner shall not be          (a) in the case of public supply: 25 million
given instructions in relation to remedy                  Forints;
procedures and/or decisions.
                                                      (b) in the case of public works: 60 million
                  PART NINE                               Forints;

             FINAL PROVISIONS                         (c) in the case of construction           works
                                                          concessions: 100 million Forints;
                 Entry into force
                                                      (d) in the case of service orders: 15 million
                   Article 401                            Forints;

1. Except as otherwise provided in paragraphs         (e) in the case of service concessions: 25
2–4, this Act shall enter into force on 1 May             million Forints.
2004, and its provisions shall be applicable to
procurement, contracts concluded pursuant to a        2. For the purposes of Chapter VI of this Act,
public contract award procedure, and design           national public procurement value thresholds
contest procedures launched after the entry into      shall be the following from 1 January 2005 to 31
force and remedy procedures launched ex officio       December 2005:
and/or conciliation procedures applied for in
relation to them.                                     (a) in the case of public supply: 25 million
                                                          Forints;
2. This Act, except Article 5, Article 9, Article
13, Part Six and Chapter XI, shall enter into         (b) in the case of public works: 70 million
force in relation to contract award procedures for        Forints;
public procurement with support from European
Union structural and cohesion funds on 1              (c) in the case of construction           works
January 2004, and its provisions shall be                 concessions: 100 million Forints;
applicable to such public procurements launched
after 1 January 2004, contracts awarded in such       (d) in the case of service orders: 20 million
procedures and remedy procedures applied for,             Forints
initiated or launched ex officio in relation to
them. Article 1 (3) of this Act shall be applied in   (e) in the case of service concessions: 25
such contract award procedures stipulating that           million Forints.
tenderers and established in, and supplies
originating from, the states set to access the        3. For the purposes of Chapter VII of this Act,
European Union on 1 May 2004 shall also be            the national public procurement value thresholds
entitled to national treatment.                       shall be the following from 1 January 2004 to 31
                                                      December 2005:
3. The provisions of this Act relating to the
value of the public procurement and Article 12,       (a) in the case of public supply: 50 million
Articles 353-358 and Part Eight herein shall              Forints;
enter into force on 1 January 2004.
                                                      (b) in the case of public works: 100 million
4. Article 5 and Article 9 of this Act shall enter        Forints;
into force on 1 January 2005.
                                                      (c) in the case of public service orders: 50
             Transitional provisions                      million Forints.

                   Article 402



150
4. For the purposes of Part Four of this Act, the     (a) the detailed rules of sending and publishing
simplified contract award procedure value                 notices, the audit procedure for notices, the
thresholds shall be the following from 1 January          related fees and their payment, and the order
2004 to 31 December 2005:                                 of publication in the Public Procurement
                                                          Bulletin and the extent and method of
(a) in the case of public supply: 2 million               payment of the related fee;121
    Forints;
                                                      (b) the detailed rules       of   design   contest
(b) in the case of public works: 10 million               procedures;122
    Forints;
                                                      (c) the detailed rules of centralised procedures
(c) in the case of public service orders: 2               different, as required by such procedures,
    million Forints.                                      the extent of the fee payable to entities
                                                          authorised to call for applications in contract
                   Article 403                            award procedures, covering only the costs
                                                          incurred in execution;123
1. Procurement procedures launched between 1
January 2004 and 30 April 2004 shall be               (d) in the case of organisations funded from the
governed by the provisions of Act XL of 1995 on           Health Insurance Fund, the detailed rules of
Public Procurement, except for public                     centralised procedures related to health care
procurement provided for in Article 401 (2), if           services which are different as from this Act
the value of public procurements within the               as required by such procedures, and the
meaning of Act XL of 1995 on Public                       amount of fee payable to the organisation
Procurement reaches or exceeds the value                  authorised to invite tenders in a centralised
thresholds laid down in Article 402 (1) and (3)           procedure whose sole purpose is to cover the
pursuant to the provisions of this Act relating to        expenses incurred in the course of the
the value of the public procurement to be applied         implementation;124
from 1 January 2004.
                                                      (e) the rules of procedural acts and procurement
2. Procurements launched between 1 January                conducted by electronic means, different, as
2004 and 30 April 2004 shall be governed by the           required, from Parts Three and Four of this
provisions of Govt. Decr. 126/1996. (VII. 24.)            Act; behaviour or omission constituting an
Korm. on the rules of direct-award procedures by          infringement of these rules shall require the
central budgetary authorities, except for                 application of Chapters VIII-X of this
procurements within the meaning of Article 401            Act;125
(2), if the value of public procurements reaches
or exceeds the value thresholds laid down in          (f) the detailed rules of contract award
Article 402 (4) (a) or (c) pursuant to the                procedures in the case of construction
provisions of this Act relating to the value of the       works;126
public procurement to be applied from 1 January
2004.                                                 (g) the detailed rules of the public procurement
                                                          of pharmaceutical products and therapeutic
3. Remedy procedure launched between 1                    aids different, as required, from those set out
January 2004 and 31 December 2005 shall be                in this Act;127
governed by the provisions of Article 319 (2)
with the derogation that at least one member of       (h) the special rules applicable to procurement
the proceeding chamber shall have qualified for           concerning a state secret, service secret or
the Bar.                                                  fundamental safety and national security

                  Empowerment                         121
                                                          See: Gov.Decr. 34/2004. (III. 12) Korm.
                                                      122
                                                          See: Gov.Decr. 137/2004. (IV. 29) Korm.
                   Article 404                        123
                                                          See: Gov.Decr. 168/2004. (V. 25) Korm.
                                                      124
                                                          See: Gov.Decr. 168/2004. (V. 25) Korm.
1. The Government shall be empowered to               125
                                                          See: Gov.Decr. 257/2007. (X. 4) Korm.
regulate in a decree                                  126
                                                          See: Gov.Decr. 162/2004. (V. 21) Korm.
                                                      127
                                                          See: Gov.Decr. 130/2004. (IV. 29) Korm.


                                                                                                    151
      interests or   requiring   special   security          consultant, and the rules pertaining to the
      measures;128                                           provision of proof of such practice;136

(i) the detailed rules applicable to the               (d) the rules pertaining to the liability insurance
    procurement of goods or ordering of                    specified as a criterion for acting as an
    services expressly for military and public             official public procurement consultant,
    order purposes concerning fundamental                  together with the Minister of Finance
    security interests in the field of defence;129         responsible for public finances137.138

(j) the rules applicable to procurement within         3. The Minister responsible for Employment
    the scope of the NATO Programme for                and Labour policy139 shall be empowered to
    Security, different, as required by the nature     regulate the procedural rules and fees applicable
    of such procedures, from this Act; 130             to compliance with the reporting obligation in
                                                       respect of the protection of employees and
(k) the detailed rules, that necessarily differ        working conditions in a regulation.140
    from the provisions set out in this law, for
    the specific public procurement procedure          4. The Minister responsible for Informatics
    with regards to selecting a waste treatment        shall be empowered to issue a decree, in
    public service provider;131                        agreement with the Minister responsible for tax
                                                       policy and the Minister responsible for
(l) the rules for the dynamic purchasing system;       informatics in public administration141 of the
                                                       Prime Minister’s Office, regulating the scope of,
(m) the detailed rules for the public procurement      the highest degree of, the prerequisites for setting
    reserved for sheltered employers, different,       and also for applying the tariffs for services
    as required, from those set out in this Act; 132   related to electronic procedural acts and to
                                                       electronic procurement.
(n)133 the rules for the public procurement in
     connection with syndicated loans attuned to       5. The Minister responsible for environmental
     the contents of the loan transaction,             protection142 shall be empowered to prescribe in
     different, as required, from those set out in     a Regulation the procedural rules and fees
     this Act.                                         applicable in compliance with the reporting
                                                       obligation – as set out in Article 55 – in respect
2. The Minister responsible for Justice134 shall       of the environmental regulations.
be empowered to regulate in a regulation
                                                       6. The Minister responsible for tax policy143
(a) the standard forms for notices and annual          shall be empowered to prescribe in a Regulation
    statistical summaries135                           the procedural rules and fees applicable in
                                                       compliance with the reporting obligation – as set
(b) the nomenclature of public procurements;
                                                       136
                                                            See: Decree 29/2004. (IX. 8.) IM of the
(c) the rules pertaining to the public                 Minister of Justice
    procurement practice specified as a criterion      137
                                                           This provision entered into force on 1 January
    for acting as an official public procurement       2007.
                                                       138
                                                           See: Common Decree 30/2004. (IX. 8.) IM-
                                                       PM of the Minister of Justice and Minister of
                                                       Finance
128                                                    139
    See: Gov.Decr. 143/2004. (IV. 29) Korm.                This provision entered into force on 1 January
129
    See: Gov.Decr. 228/2004. (VII. 30) Korm.           2007.
130                                                    140
    See: Gov.Decr. 40/2005. (III. 10) Korm.                 See: Decree 1/2004. (I. 9.) FMM of the
131
    See: Gov.Decr. 224/2004. (VII. 22) Korm            Minister of Employment and Labour
132                                                    141
    See: Gov.Decr. 302/2006. (XII. 22) Korm                This provision entered into force on 1 January
133
    This clause entered into force on 1 July 2006.     2007.
134                                                    142
    This provision entered into force on 1 January         This provision entered into force on 1 January
2007.                                                  2007.
135                                                    143
     See: Decree 2/2006. (I. 13.) IM of the                This provision entered into force on 1 January
Minister of Justice                                    2007.


152
out in Article 55 – in respect of the requirements   regulations and administrative provisions
connected to taxation.144                            relating to the application of Community
                                                     rules on the procurement procedures of
7. The Minister responsible for facilitating         entities operating in the water, energy,
equal opportunities in society145 shall be           transport and telecommunications sectors;
empowered to prescribe in a Regulation the
procedural rules and fees applicable in              (d) Corrigendum to Directive 2004/17/EC
compliance with the reporting obligation – as set    of the European Parliament and of the
out in Article 55 – in respect of the regulations    Council of 31 March 2004 coordinating the
on unhindered access for physically disabled         procurement procedures of entities operating
people.                                              in the water, energy, transport and postal
                                                     services sectors (In implementation of the
                                                     Act, legislation of Gov.Decr. based on
                                                     empowerment of Article 404 (1) a.)-b.), e.)
                   Article 405146                    and l.)-m.) and Min.Decr. based on
                                                     empowerment of Article 404 (4);

                   Article 406147                    (e) Corrigendum to Directive 2004/18/EC
                                                     of the European Parliament and of the
                                                     Council of 31 March 2004 on the
      Approximation to European Community law        coordination of procedures for the award of
                                                     public works contracts, public supply
                                                     contracts and public service contracts (In
                      Article 407                    implementation of the Act, legislation of
                                                     Gov.Decr. based on empowerment of Article
       This Act contains regulations compatible      404 (1) a.)-b.), e.) and l.)-m.) and Min.Decr.
       with the following laws of the European       based on empowerment of Article 404 (4);
       Community:
                                                     (f) Commission           Regulation       (EC)
       (a) Council Directive 71/304/EEC of 26        No 1874/2004 of 28 October 2004 amending
       July 1971 on concerning the abolition of      Directives 2004/17/EC and 2004/18/EC of
       restrictions on freedom to provide services   the European Parliament and of the Council
       in respect of public works contracts and on   in respect of their application thresholds;
       the award of public works contracts to
       contractors acting through agencies or        (g) Commission Directive 2005/51/EC of 7
       branches;                                     September 2005 amending Annex XX to
                                                     Directive 2004/17/EC and Annex VIII to
       (b) Council Directive 89/665/EEC of 21        Directive 2004/18/EC of the European
       December 1989 on the coordination of the      Parliament and the Council on public
       laws, regulations and administrative          procurement.
       provisions relating to the application of
       review procedures to the award of public
       supply and public works contracts;

       (c) Council Directive 92/13/EEC of 25
       February 1992 coordinating the laws,


144
     See: Decree 1/2006. (I. 13.) PM of the
Minister of Finance
145
    This provision entered into force on 1 January
2007.
146
     This provision is ceased to be in force
following 1 July 2007.
147
     This provision is ceased to be in force
following 1 July 2007.


                                                                                              153
Annex 1 to Act CXXIX of 2003 on Public Procurement


                        List of professional activities specified in Article 25 (1)148


                                                                    NACE 1
            CPV reference no.                                               Section F                                        Building
 Classes       Groups      Subgroups             Subject                                   Comments                        Construction
      45                                       Construction         This class includes:                                45000000
                                                                    - construction of new buildings and works,
                                                                    restoring and common repairs

                 45.1                          Site preparation                                                         45100000
                              45.11            Demolition and This class includes:                                 45110000
                                               wrecking      of —demolition of buildings and other structures
                                               buildings; earth — clearing of building sites
                                               moving           — earth moving: excavation, landfill, levelling
                                                                and grading of construction sites, trench digging,
                                                                rock removal, blasting, etc.
                                                                — site preparation for mining:
                                                                — overburden removal and other development and
                                                                preparation of mineral properties and sites
                                                                This class also includes:
                                                                — building site drainage
                                                                — drainage of agricultural or forestry land

                             45.12.            Test drilling and This class includes:                                       45120000
                                               boring            — test drilling, test boring and core sampling for
                                                                 construction, geophysical, geological or similar
                                                                 purposes
                                                                 This class excludes:
                                                                 — drilling of production oil or gas wells, see 11.20
                                                                 — water well drilling, see 45.25
                                                                 — shaft sinking, see 45.25
                                                                 — oil and gas field exploration, geophysical,
                                                                 geological and seismic surveying, see 74.20

                 45.2                          Building       of                                                            45200000
                                               complete
                                               constructions or
                                               parts
                                               thereof;     civil
                                               engineering

                              45.21            General         This class includes:                                         45210000
                                               construction of construction of all types of buildings,construction
                                               buildings   and of civil engineering constructions:
                                               civil           -bridges, including those for elevated highways,
                                               engineering     viaducts, tunnels and subways
                                               works           -long-distance pipelines, communication and
                                                               power lines
                                                               -urban pipelines, urban communication and power
                                                               lines;
                                                               -ancillary urban works
                                                               -assembly and erection of prefabricated
                                                               constructions on the site
                                                               This class excludes:
                                                               -service activities incidental to oil and gas


148
      In the event of any difference of interpretation between the CPV and the NACE, the NACE nomenclature will apply.



154
                                                            NACE 1
          CPV reference no.                                          Section F                                      Building
Classes      Groups     Subgroups          Subject                               Comments                          Construction
                                                            extraction, see 11.20
                                                            -erection of complete prefabricated constructions
                                                            from self-manufactured parts not of concrete, see
                                                            divisions 20, 26 and 28
                                                            -construction work, other than buildings, for
                                                            stadiums, swimming pools, gymnasiums, tennis
                                                            courts, golf courses and other sports installations,
                                                            see 45.23
                                                            -building installation, see 45.3
                                                            -building completion, see 45.4
                                                            -architectural and engineering activities, see 74.20
                                                            -project management for construction, see 74.20

                          45.22          Erection of roof This class includes:                                      45220000
                                         covering     and -erection of roofs
                                         frames           -roof covering
                                                          -waterproofing

                          45.23.         Construction of    This class includes:                                    45230000
                                         motorways,         -construction of highways, streets, roads, other
                                         roads, airfields   vehicular and pedestrian ways
                                         and                -construction of railways
                                         sport facilities   -construction of airfield runways
                                                            -construction work, other than buildings,
                                                            -for stadiums, swimming pools, gymnasiums,
                                                            tennis courts, golf courses and other sports
                                                            installations
                                                            -painting of markings on road surfaces and car
                                                            parks
                                                            This class excludes:
                                                            -preliminary earth moving, see 45.11

                      45.24.        Construction of water   This class includes:                                    45240000
                                    projects                construction of:
                                                            -waterways, harbour and river works, pleasure
                                                            ports (marinas), locks, etc.
                                                            -dams and dykes
                                                            -dredging
                                                            -subsurface work

                      45.25.        Other construction      This class includes:                                    45250000
                                    workd involving         -construction activities specialising in one aspect
                                    special                 common to different kinds of structures, requiring
                                    trades                  specialised skill or equipment: construction of
                                                            -foundations, including pile driving
                                                            -water well drilling and construction, shaft sinking
                                                            -erection of non-self-manufactured steel elements
                                                            -steel bending
                                                            -bricklaying and stone setting
                                                            -scaffolds and work platform erecting and
                                                            dismantling, including renting of scaffolds and
                                                            work platforms
                                                            -erection of chimneys and industrial ovens

                                                            This class excludes:
                                                            -renting of scaffolds without erection and
                                                            dismantling, see 71.32

              45.3             .         Building                                                                   45300000
                                         installation
                          45.31.         Installation   of This class includes:                                     45310000
                                         electrical wiring -installation in buildings or other construction
                                         and fittings      -projects of:
                                                           -electrical wiring and fittings
                                                           -telecommunications systems




                                                                                                                        155
                                                        NACE 1
          CPV reference no.                                     Section F                                        Building
Classes      Groups     Subgroups     Subject                               Comments                            Construction
                                                        -electrical heating systems
                                                        -residential antennas and aerials
                                                        -fire alarms
                                                        -burglar alarm systems
                                                        -lifts and escalators
                                                        -lightning conductors, etc.

                          45.32.    Insulation work This class includes:                                         45320000
                                    activities      -installation in buildings or other construction
                                                    -projects of thermal, sound or vibration insulation
                                                    This class excludes:
                                                    -waterproofing, see 45.22

                          45.33     Plumbing            This class includes:                                     45330000
                                                        -installation in buildings or other construction
                                                        -projects of:
                                                        -plumbing and sanitary equipment
                                                        -gas fittings
                                                        -heating,       ventilation,     refrigeration   or
                                                        airconditioning
                                                        -equipment and ducts
                                                        -sprinkler systems
                                                        This class excludes:
                                                        -installation of electrical heating systems, see
                                                        45.31

                          45.34     Other building This class includes:                                          45340000
                                    installation   -installation of illumination and signalling systems
                                                   for roads, railways, airports and harbours
                                                   -installation in buildings or other construction
                                                   projects of fittings and fixtures n.e.c.

              45.4                  Building                                                                     45400000
                                    completion
                          45.41     Plastering          This class includes:                                     45410000
                                                        -application in buildings or other construction
                                                        -projects of interior and exterior plaster or stucco,
                                                        including related lathing materials

                          45.42     Joinery             This class includes:                                     45420000
                                    installation        -installation of non self-manufactured doors,
                                                        windows, door and window frames,
                                                        -fitted kitchens, staircases, shop fittings and the
                                                        like, of wood or other materials
                                                        -interior completion such as ceilings, wooden wall
                                                        coverings, movable partitions, etc.

                                                        This class excludes:
                                                        -laying of parquet and other wood floor
                                                        coverings, see 45.43

                          45.43     Floor and wall This class includes:                                          45430000
                                    covering       laying, tiling, hanging or fitting in buildings or
                                                   other construction projects of:
                                                   -ceramic, concrete or cut stone wall or floor tiles
                                                   -parquet and other wood floor coverings
                                                   -carpets and linoleum floor coverings, including of
                                                   rubber or plastic
                                                   -terrazzo, marble, granite or slate floor or wall
                                                   coverings
                                                   -wallpaper

                          45.44     Painting       and This class includes:                                      45440000
                                    glazing            -interior and exterior painting of buildings
                                                       -painting of civil engineering structures




156
                                                          NACE 1
           CPV reference no.                                      Section F                                        Building
 Classes      Groups     Subgroups        Subject                              Comments                           Construction
                                                          -installation of glass, mirrors, etc

                                                          This class excludes:
                                                          -installation of windows, see 45.42

                           45.45        Other building This class includes:                                        45450000
                                        completion     -installation of private swimming pools
                                                       -steam cleaning, sand blasting and similar
                                                       activities for building exteriors
                                                       -other building completion and finishing work
                                                       n.e.c.

                                                          This class excludes:
                                                          -interior cleaning of buildings and other structures,
                                                          see 74.70

               45.5                     Renting      of                                                            45500000
                                        construction or
                                        demolition
                                        equipment with
                                        operator
                                                                                                                   149
                           45.50        Renting      of This class excludes:
                                        construction or -renting of construction or demolition machinery
                                        demolition      and equipment without operators, see 71.32
                                        equipment with
                                        operator




149
  Council Regulation (EEC) No 3037/90 of 9 October 1990 on the statistical classification of economic activities in the
European Community (OJ L 293, 24.10.1990, p. 1). Regulation as amended by Commission Regulation (EEC) No 761/93 of 24
March 1993 (OJ L 83, 3.4.1993, p. 1).




                                                                                                                         157
Annex 2 to Act CXXIX of 2003 on Public Procurement


                          List of goods in the field of defence


chapter 25:     Salt; sulphur; earth and stones; gypsum; lime and cement
chapter 26:     Ores; slags and ashes
chapter 27:     Mineral fuels, mineral oils and their distilled derivatives; bituminous
                materials; mineral waxes
                except:
                ex 2710: special engine fuels
chapter 28:     Inorganic chemicals, inorganic or organic compounds from precious
                metals, rare-earth metals, radioactive elements and isotopes
                except:
                ex 2809: explosives
                ex 2813: explosives
                ex 2814: teargas
                ex 2828: explosives
                ex 2832: explosives
                ex 2839: explosives
                ex 2850: toxic products
                ex 2851: toxic products
                ex 2854: explosives
chapter 29:     Organic chemicals
                except:
                ex 2903: explosives
                ex 2904: explosives
                ex 2907: explosives
                ex 2908: explosives
                ex 2911: explosives
                ex 2912: explosives
                ex 2913: toxic products



158
              ex 2914: toxic products
              ex 2915: toxic products
              ex 2921: toxic products
              ex 2922: toxic products
              ex 2923: toxic products
              ex 2926: explosives
              ex 2927: toxic products
              ex 2929: explosives
chapter 30:   Pharmaceutical preparations
chapter 31:   Manuring products
chapter 32:   Tanning and colouring extracts; tannins and derivatives; dyes, pigments
              and other colouring agents, paints and varnishes; putty and mastic
              (finishing and sealing materials); inks
chapter 33:   Essential oils and resinoids; scents, beauty and body care products
chapter 34:   Soaps, organic tensides, detergents, lubricants, synthetic waxes, ceresin
              waxes, scrubbing and polishing materials, candles and similar products,
              modelling paste, “dental wax” and gypsum-based dental preparations
chapter 35:   Protein materials, modified starched; glues; enzymes
chapter 37:   Photographic and cinematographic products
chapter 38:   Miscellaneous chemical products
              except:
              ex 3819: toxic products
chapter 39:   Resins and plastics, cellulose ester and ether; goods made from these
              except:
              ex 3903: explosives
chapter 40:   Rubber, synthetic rubber and goods made from these
              except:
              ex 4011: bullet-proof tyres
chapter 41:   Fresh hide (except fur) and leather




                                                                                    159
chapter 42:   Leather goods; saddler and harnessmaker goods; travel articles,
              handbags and similar containers; goods made from animal guts (except
              goods made from silkworm gut)
chapter 43:   Fur, artificial fur; goods made from these
chapter 44:   Wood and timber products; charcoal
chapter 45:   Cork and cork goods
chapter 46:   Goods made from straw, alfa-grass and other spinning materials;
              basketwork and wickerwork goods
chapter 47:   Paper industry fibrous stuff
chapter 48:   Paper and cardboard; goods made from paper industry fibrous stuff,
              paper and cardboard
chapter 49:   Books, newspapers, pictures and other printed products; manuscripts,
              typed texts and design drawings
chapter 65:   Hats and other head-gear, and their parts
chapter 66:   Umbrellas, parasols, canes, walking-sticks, seat-sticks, lashes, whips,
              and their parts
chapter 67:   Finished feather and down, and goods made from these; artificial
              flowers; goods made from human hair
chapter 68:   Goods made from stone, gypsum, cement, asbestos, mica and similar
              materials
chapter 69:   Ceramics products
chapter 70:   Glass and glass products
chapter 71:   Natural or culture pearl, precious stone, semi-precious stone, precious
              metal, precious metal plated metal and goods made from these;
              imitation jewels
chapter 73:   Iron and steel, and goods made from these
chapter 74:   Copper and goods made from copper
chapter 75:   Nickel and goods made from nickel
chapter 76:   Aluminium and goods made from aluminium
chapter 77:   Magnesium and beryllium, and goods made from these
chapter 78:   Lead and goods made from lead



160
chapter 79:   Zinc and goods made from zinc
chapter 80:   Tin and pewter products
chapter 81:   Other non-precious metals and goods made from these
chapter 82:   Tools, craftsman’s products, cutlery from non-precious metals; their
              parts
              except:
              ex 8205: tools
              ex 8207: tools, parts
chapter 83:   Miscellaneous goods from non-precious metals
chapter 84:   Furnaces, machinery and mechanic equipment; their parts
              except:
              ex 8406: engines
              ex 8408: other engines
              ex 8445: machines
              ex 8453: automatic data processing machines
              ex 8455: machine parts within the scope of customs tariff number 84.53
              ex 8459: atomic reactors
chapter 85:   Electric machines and electric equipment; their parts
              except:
              ex 8513: telecommunication equipment
              ex 8515: transmission equipment
chapter 86:   Railway engines and electric motorcoaches, other rail vehicles and their
              parts; railway and electric track accessories, fixtures and their parts; all
              kinds of mechanic traffic signalling equipment
              except:
              ex 8602: armoured electrical engines
              ex 8603: other armoured engines
              ex 8605: armoured wagons
              ex 8606: repair wagons
              ex 8607: wagons
chapter 87:   Vehicles and their parts, except railways or electric rail vehicles



                                                                                       161
              except:
              8708: tanks and other armoured vehicles
              ex 8701: tractors
              ex 8702: combat vehicles
              ex 8703: breakdown lorries
              ex 8709: motorcycles
              ex 8714: trailers
chapter 89:   Ships, boats and other floating structures
              except:
              ex 8901 A: warships
chapter 90:   Optical, photographic, cinematographic, measuring, controlling,
              precision, medical and surgical instruments and equipment; their parts
              and accessories
              except:
              ex 9005: binocular telescopes
              ex 9013: miscellaneous instruments, lasers
              ex 9014: telemetering equipment
              ex 9028: electric and electronic measuring instruments
              ex 9011: microscopes
              ex 9017: medical instruments
              ex 9018: mechanotherapeutic equipment
              ex 9019: orthopaedic equipment
              ex 9020: X-ray equipment
chapter 91:   Clocks, watches and their parts
chapter 92:   Musical instruments; sound recorder and playback equipment;
              television sound and image recorder equipment; their parts and
              accessories
chapter 94:   Furniture and parts; bed fittings, mattresses, spring-mattresses, pillows
              and other upholstered interior decoration articles
              except:
              ex 9401: airplane seats



162
chapter 95:   Goods and products made from chiselling and moulding materials
chapter 96:   Brooms, brushes, powder-puffs and sieves
chapter 98:   Miscellaneous manufactured goods




                                                                               163
Annex 3 to Act CXXIX of 2003 on Public Procurement


                                                               Services*


Category                                                                                    CPC reference
                                                  Subject                                                             CPV reference no.
      no.                                                                                         no.
1.          Maintenance and repair services                                                 6112, 6122,     from 50100000          to   50982000
                                                                                            633, 886        (except     from       50310000    to
                                                                                                            50324200         and     50116510-9,
                                                                                                            50190000-3,              50229000-6,
                                                                                                            50243000-0)
2.          Land transportation services2, including services with armoured vehicles 712 (except            From 60112000-6 to 60129300-1
            and courier services, except carrying postal consignments                       71235), 7512,   (except     from       60121000    to
                                                                                            87304           60121600,                60122200-1,
                                                                                                            60122230-0) and from 64120000-
                                                                                                            3 to 64121200-2
3.          Air passenger carrying and freight forwarding services, except carrying 73 (except              From 62100000-3 to 62300000-5
            postal consignments                                                             7321)           (except 62121000-6, 62221000-7)
4.          Land and air carrying of postal consignments1                                   71235, 7321     60122200-1,              60122230-0,
                                                                                                            62121000-6, 62221000-7
5.          Telecommunication services                                                      752             From 64200000-8 to 64228200-2,
                                                                                                            72318000-7 and from 72530000-
                                                                                                            9 to 72532000-3
6.          Financial services                                                              ex 81, 812,           From         66100000-1      to
            (a) Insurance services                                                          814             66430000-3 and from 67110000-
            (b) Banking and investment services4                                                            1 to 67262000-14
7.          Computer and related services                                                   84              From 50300000-8 to 50324200-4,
                                                                                                            from 72100000-6 to 72591000-4
                                                                                                            (except from 72318000-7 and
                                                                                                            from 72530000-9 to 72532000-3)
8.          Research and development services5                                              85              From 73000000-2 to 73300000-5
                                                                                                            (except 73200000-4, 73210000-7,
                                                                                                            7322000-0)
9.          Accounting, auditing and bookkeeping services                                   862             From 74121000-3 to 74121250-0
10.         Market research and public opinion poll services                                864             74130000-9 to 74133000-0 and
                                                                                                            74423100-1, 74423110-4
                                              6
11.         Management consulting services and related services                             865, 866        From 73200000-4 to 73220000-0,
                                                                                                            from 74140000-2 to 74150000-
                                                                                                            5(except         74142200-8)      and
                                                                                                            74420000-9,              74421000-6,
                                                                                                            74423000-0,              74423200-2,
                                                                                                            74423210-5,              74871000-5,
                                                                                                            93620000-0
12.         Architectural services; civil engineering services and integrated civil 867                     From 74200000-1 to 74276400-8
            engineering services; urban and country planning services; related scientific                   and       from     74310000-5      to
            and technical consulting services; technical inspection and analysis services                   74323100-0 and 74874000-6




164
13.         Advertising services                                                               871                From 74400000-3 to 74422000-3
                                                                                                                  (except          74420000-9     and
                                                                                                                  74421000-6)
14.         Building cleaning services and property management services                        874, from          From 70300000-4 to 70340000-6
                                                                                               82201 to           and       from     74710000-9    to
                                                                                               82206              74760000-4
15.         Publishing and printing house services on ad hoc or contractual basis              88442              From 78000000-7 to 78400000-1
16.         Sewage disposal and waste recovery services; decontamination and similar 94                           From 90100000-8 to 90320000-6
            services                                                                                              and, 50190000-3, 50229000-6,
                                                                                                                  50243000-0
* In the event of any difference of interpretation between the CPV and the CPC, the CPC nomenclature will apply.
1
      CPC is in force, based on its provisional nomenclature.
2
      Except railway transportation services, which belong to category 18.
3
      Except railway transportation services, which belong to category 18.
4
      Except financial services related to the issue, sale, purchase or transfer of securities and other financial instruments, and central
      banking activities (services). Also excluded services involving the acquisition or rental, by whatever financial procedures of land,
      existing buildings, or other immovable property or concerning rights thereon; nevertheless, financial services supplied at the same time
      as before or after the contract of acquisition or rental, in whatever form, shall be subject to this Act.
5
      Research and development services, if their results are exploited exclusively by the contracting entity within the scope of its activities
      and if the consideration is paid fully by the contracting entity.
6
      Except arbitration, intermediary and conciliation activities.




                                                                                                                                         165
Annex 4 to Act CXXIX of 2003 on Public Procurement


                                                                 Services*


                                                                                         CPC
Category no.                                     Subject                             reference               CPV reference no.
                                                                                          no.
17.            Hotel and catering services                                          64           From 55000000 to 55524000-9 and
                                                                                                 from 93400000-2 to 93411000-2
18.            Railway transportation services                                      711          60111000-9 and from 60121000-2 to
                                                                                                 60121600-8
19.            Water transportation services                                        72           From 61000000-5 to 61530000-9 and
                                                                                                 from 63370000-3 to 63372000-7
20.            Auxiliary and supplementary transportation services                  74           62400000-6, 62440000-8, 62441000-
                                                                                                 5, 62450000-1, from 63000000-9 to
                                                                                                 63600000-5      (except     63370000-3,
                                                                                                 63371000-0,       63372000-7)      and
                                                                                                 74322000-2,
21.            Legal services                                                       861          From 74110000- to 74114000-1
                                                           150
22.            Personnel placement and supply services                              872          From 74500000-4 to 74540000-6
                                                                                                 (except     74511000-4)     and   from
                                                                                                 95000000-2 to 95140000-5
23.            Investigation and security services, except services with armoured   873 (except From 74600000-5 to 74620000-1
               vehicles                                                             87304)
24.            Educational and vocational training services                         92           From 80100000-5 to 80430000-7
25.            Health and social services                                           93           74511000-4 and from 85000000-9 to
                                                                                                 85323000-9 (except 85321000-5 and
                                                                                                 85322000-2)
26.            Entertainment, cultural and sports services                          96           From 74875000-3 to 74875200-5 and
                                                                                                 from      92000000-1   to   92622000-7
                                                                                                 (except 92230000-2)
27.            Other services151

* In the event of any difference of interpretation between the CPV and the CPC, the CPC nomenclature
will apply.




150
   Except employment contracts
151
   This category includes all services which cannot be fitted in any category of Annex 3 and 4. Except
contracts for the acquisition, development, production or co-production of programmes by broadcasting
organisations and contracts for broadcasting time.


166
Annex 5 to Act CXXIX of 2003 on Public Procurement


                                      Attestation Statement


“Applicant … has been granted attestation within the meaning of Directive 92/13/EEC of
the Council, pursuant to which its contract award procedures and practices were, as of ….
(date), in accordance with European Community law on public procurement and national
legislation for its transposition.”




Annex 6 to Act CXXIX of 2003 on Public Procurement


                                      Attestation Statement


“Contracting entity … has been granted attestation within the meaning of Article 310 (2)
/(3) of Act CXXIX of 2003 on Public Procurement, pursuant to which its contract award
procedures and practices were, as of …. (date), in accordance with European Community
law on public procurement and national legislation for its transposition.”




                                                                                     167

								
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