Public Procurement Authority

This Chapter shall apply to public contracts, not including works and service concessions, the value of which is below EU thresholds and at the same time is equal to or greater than national thresholds. Furthermore, the procedure pursuant to this Chapter may be applied in cases where Chapter III of this Act permits or requires it [Article 19(4); Article 21(2)].

This Act shall not apply to the following procurements the value of which is below EU thresholds:

a) to the procurement of textbooks, if it is carried out in accordance with the Act on National Public Education, in the framework of the supply of textbooks to schools and where the textbook is registered in the textbook register;

b) to the procurement of supplies and services for the full boarding of children situated in children’s homes and apartment homes on the basis of the Act on the Protection of Children and on Guardianship Administration, for the full boarding of those who receive after-care and of persons receiving social services under Articles 59-85/A of Act III of 1993 on Social Administration and Social Benefits;

c) for health services under Annex 3, if they are provided as part of a public service that is wholly or partly publicly financed and subject to the obligation to provide care, for hotel and restaurant services under Annex 3, for library services as defined by the CPV codes from 79995000-5 to 79995200-7, for recreational, cultural, and sporting services as defined by the CPV codes from 92000000-1 to 92700000-8, and for legal services;

d) for any service under Annex 3, if its estimated value is less than thirty million forints;

e) procurement in the context of international development cooperation, international humanitarian assistance, and international stability promotion activities;

f) to the procurement of cold foodstuffs and cooking raw materials, fresh and processed vegetables and fruits, milk and dairy products, cereals, bread products, honey, eggs, horticultural plants;

g) in case of public services aimed at the creation of a literary (technical, scientific) work, or involving consulting or personal interpreting activity necessary for the performance of the contracting authority’s core activity;

h) for the purchase of tickets and season tickets for passenger transport by land, water, or air;

i) to Article 3 (5)(7)(9) of Act CXXVIII of 2011 on Disaster Management and the Amendment of Certain Related Acts, as well as, in the case of an emergency situation or in a health crisis to procurements aiming to prevent or eliminate a human epidemic or epidemic diseases in animals, to directly prevent or avoid damage caused by serious industrial or traffic accidents or by water, to prevent adverse impacts on water quality, as well as for the purposes of protective preparedness or the subsequent reconstruction;[6]

j) to the procurement of goods made, services provided and works executed in the framework of obligatory employment of prisoners;

k) to the procurement of goods made, services provided and works executed by a public employer in the framework of public employment;

l) to the use of services related to cash management pursuant to the Act on Credit Institutions and Financial Enterprises;

m) for the procurement of postal services or services other than postal services provided by a postal service provider, for the procurement of an organization that utilizes a designated geographic area for the provision of international commercial airport services to air carriers and passenger transport operators, and for the procurement by a contracting authority referred to in Article 6(1)(b) related to the direct production of electricity through the application of renewable technologies;

n) for the procurement of printed and electronic books, newspapers, periodicals, and electronic databases primarily containing these publications, for research, public domain, or educational purposes, or the rights related to their use; for the acquisition of objects and rights related to cultural goods; and for the procurement of musical instruments, musical instrument accessories, and parts of musical instruments;

o) to the procurements financed from the allocation stipulated by Article 113 and 114(3) of the Act XXXVI of 2012 on the National Assembly;

p) to public services which are awarded for carrying out, or directly facilitating, the scientific, awareness-raising, research or educational activities specified in the statutes of the foundation established on the basis of Article 1 of the Act XLVII of 2003 on the foundations carrying out scientific, awareness-raising, research, educational activities which assist the functioning of political parties;

q) in the case of procurement for a foreign representation and for a temporary body established in an area of operations by a budgetary body under the direction or supervision of the minister responsible for defence, or for the supply of goods or services to participants in foreign training courses, permanent non-armed foreign service, or military representations outside the borders of Hungary;

r) the procurement of architectural and engineering planning services, interior design planning services, settlement or landscape planning services related to buildings as defined in the Act on the Formation and Protection of the Built Environment – to the related specialised planning activities and planning required for the normal use of the building, only if that is procured together with architectural, interior design, settlement or landscape planning, in relation to the same planned public works;

s) to services covered by CPV codes 71241000-9, 71242000-6, 71244000-0, 71246000-4, 71247000-1, provided that such service is purchased together with an architectural service specified in point (r), for the same public works;

t) to the procurement of goods made or services provided by disadvantaged workers, in a sheltered place of employment.

u) the procurement of soil amendments and approved pesticides covered by CPV codes from 24400000-8 to 24457000-2 and used in agricultural production, research;

v) the procurement of supplies and services directly related to R&D and innovation activities, specially serving the pursuit of such activities;

w) for the purchase of goods, services, and works with an estimated value of less than three hundred million HUF, under the Government Decree on the specific rules for certain procurements related to the care of persons recognized as entitled to temporary protection;

x) procurements in the case of which the task specified in the contract is carried out by a contracting authority under Article 5 (1) or Article 7 (1)-(2) or by an association of such contracting authorities or by an other legal entity pursuing an activity under Article 6 (1)-(2) based on an exclusive right exercised pursuant to law or administrative decision, in compliance with the TFEU;

y) to the procurement of goods produced, services provided by a start cooperative the annual net turnover of which fails to exceed HUF 10 million, and of public works;

z) in the case of procurement in the interest of fulfilling the duties performed by Sándor-palace based on Act XII of 1990 on the Kossuth Prize and the Széchenyi Prize and Act CCII of 2011 on the Use of the Coat of Arms and National Flag, as well as the State Awards of Hungary.

1. For the purposes of carrying out a public procurement covered by this Part, the contracting authority, according to its choice

a) shall conduct a procedure developed independently in a way pursuant to Article 117, or

b) shall proceed according to the rules set out in Part Two of this Act, with the differences stipulated in Articles 114-116.

2. For the purposes of paragraph 1(b), Part Two of the Act shall apply in compliance with the separate act of legislation specified in Article 21(4), subject to the criteria set out in Articles 22-24.

1.

1. In the notice launching the procedure, the contracting authority shall be entitled to provide for the application of one or more of the exclusion grounds pursuant to Articles 62-63, and shall be bound to provide for the enforcement of the exclusion grounds pursuant to Article 62 (1)(h)-(k) and (m) in the public procurement procedure. The contracting authority shall not be obliged to stipulate suitability criterion in the procedure.

2. For the purposes of the self-declaration pursuant to Article 67 (1), the standard form established by the European Commission shall not be used; where Part Two of this Act refers to the “European Single Procurement Document” (the “ESPD”) it shall mean the self-declaration pursuant to Article 67(1). Detailed information concerning Article 62 (1)(kb) shall be given by the tenderer and the candidate in the self-declaration pursuant to Article 67(1) according to the rules set out in the government decree. The self-declaration pursuant to Article 67(1) is merely a statement made by the economic operator that the suitability criteria he intends to certify are met; no detailed information shall be given concerning the fulfilment of the suitability criteria. Upon the contracting authority’s request pursuant to Article 69, the economic operator shall submit his self-declarations specified in the notice launching the procedure and containing detailed information on the fulfilment of the suitability criteria, according to the rules on the submission of certificates referred to in the notice launching the procedure, concerning the suitability criteria and, where appropriate, the objective criteria according to Article 82(5). In terms of the tender of the tenderer requested to submit certificates, the contracting authority verifies the non-existence of the exclusion grounds and the fulfillment of suitability criteria, furthermore, if appropriate, the fulfilment of the ojective criteria pursuant to Article 82 (5), based on the databases referred to in Article 69 (11). If no suitability criterion is established by the contracting authority in the procedure, the notice specified in Article 69 (4) shall not be applied and it shall verify the data of the databases referred to in Article 69 (11) only concerning exclusion grounds.

3. In the case of public works, the contracting authority shall make available the procurement documents in line with Article 57(1), except in the case of negotiated procedures without publication initiated on the grounds set out in Article 98(2)-(3); in other cases it is entitled to do so, with the proviso that in the case of public supplies and public services, in addition to the requirements listed in Article 57(1)(a)-(b), it is entitled to communicate the essential contract terms instead of providing a draft contract (hereinafter jointly referred to as the ‘draft contract’).

4. In open, restricted and negotiated procedures, the time limit for submission of tenders may not be shorter than the following time limits counted from the date of sending of the notice launching the procedure or the date of dispatch of the notice launching the procedure or the date of dispatch of the invitation to tender:

a) ten days in the case of public supplies and public services,

b) fifteen days in the case of public works.

In the participation stage of the procedures consisting of more than one stage, the time limit to participate shall be set in such a way as to allow appropriate submission of requests to participate.

4a. The provisions in Article 52(5) shall apply to the extension of the time limit for submission of tenders or requests to participate with the derogation that the contracting authority is not obliged to extend the time limit if the amendment of the procurement documents is not significant and if the dispatch of the amendment falls on the third day the latest of the day of expiry of the time limit for submission of tenders or requests to participate, and if a notice needs to be published on the amendment, its dispatch would fall on the fifth day the latest of the day of expiry of the time limit for submission of tenders or requests to participate.

5. The negotiated procedure and the competition dialogue may be applied in all cases. Where the prior information notice related to the services listed in Annex 3 covers a period of more than twelve months, the direct invitation to participate may be sent more than twelve months after the date of publication of the prior information notice, but it shall be sent within the period covered by the prior information notice.

6. The supplementary information shall be provided by the contracting authority within a reasonable time before the expiry of the time limit for submission of tenders or the time limit to participate. Where the contracting authority considers it necessary to answer the question for the sake of proper submission of tenders or requests to participate but there is not enough time to provide the relevant answer in reasonable time and to take account of the answer, it may extend the time limit for submission of tenders and the time limit for submission of requests to participate in accordance with the methodology established in Article 52(3).

6a. The contracting authority shall not be obliged to verify the abnormally low price and other abnormal undertakins. The contracting authority shall not be obliged to apply Article 73 (2), however, by referring to such Article shall only declare a tender inadmissible if it proceeded in compliance with the provisions of Article 72.

7. In the case of application of the framework agreement, the reopening of the competition may be realized in an electronic auction instead of application of Article 105(2), provided that it was prescribed by the contracting authority in the framework agreement as well as previously in the relevant procurement procedure, in the notice launching the procedure.

8. If the conclusion of the contract with the tenderer submitting the most advantageous tender on the basis of the assessment resulted in a higher contract value than the estimated value and thus the rules according to which the procedure was launched by the contracting authority would not have been applicable, had the contracting authority determined that value as the estimated value of the procedure, the contracting authority shall declare the procedure unsuccessful.

9. The contracting authority may launch a negotiated procedure without a contract notice, if the publicised terms of the purchase, which are exceptionally favourable and open to all, persist only for a limited period of time and the amount of the consideration is substantially lower than the market prices, furthermore, the application of a procedure according to this Part would not allow the contracting authority to take advantage of those favourable terms.

10. Competition shall be ensured by the contracting authority also in the case specified in Article 9 and at least three economic operators - which, in the opinion of the contracting authority, are able to comply with the suitability criteria for the performance of the contract - shall be invited to tender.

11. The contracting authority may reserve the right to participate in a public procurement procedure for tenderers whose turnover, net of value added tax, did not reach in the previous year HUF 100 million in the case of public supply and public services or HUF 1 billion in the case of public works and who use subcontractors also complying with the condition set in this paragraph for the performance of the contract and who fulfil the defined suitability criteria with the support of the capacity of another entity also complying with the conditions set by this paragraph.

12. In the case of public works, paragraph 11 may only be applied if the estimated value of the specific procurement, calculated without the application of Article 19(3), does not exceed HUF 500 million.

13. In the cases specified in Article 80(1)(b), preliminary dispute settlement may be initiated until the expiry of the time limit for submission of tenders or the time limit for the submission of requests to participate.

14. In case of services listed in Annex 3, the information specified in Article 76(9) may also be indicated in the procurement documents instead of the notice launching the procedure.

15. The contracting authority shall, except for the procurement of services with a value exceeding thresholds specified in Annex 3, prepare a summary of the evaluation of tenders at the conclusion of the tender evaluation, even if the procedure has allowed for tenders to be divided into lots.

Article 114/A

1. The contracting authority may prescribe in the notice launching the procedure, except for the service pursuant to Annex 3, provided the estimated value thereof reaches or exceeds the EU threshold, that, in the frames of the evaluation pursuant to this Article, the economic operators shall submit the certificates stipulated in the procurement documents in regard to the exclusion grounds, the suitability criteria and the objective criteria under Article 82(5) in their request to participate or in their tender. In this case, the provisions of paragraph (2)-(6) shall be applicable; the provisions of Article 67(1), Article 69(2)-(9) and Article 114(2) shall not be applicable. During the evaluation the contracting authority verifies the data of the databases refered to in Article 69 (11) concerning the tender of all economic operators.

2. The contracting authority shall define the tender or request to participate which is invalid, and it shall state if there is any economic operator who needs to be excluded from the procedure. The contracting authority shall evaluate the tenders that are found valid, in accordance with the award criteria.

3. The entity providing resources shall only need to submit the certificates in regard to the suitability criteria.

4. Article 69(11a) shall be applicable with the derogation that the economic operator shall define, in its request to participate or in its tender, a previous procedure the certificate whereto it requests to consider in the evaluation.

5. Article 84(1)d) shall be applicable with the derogation that the invitation to tender shall comprise, where necessary, the definition of the statements and documents that are to be attached to the tender and that certify that the tenderer, its subcontractor and the entity participating in the certification of suitability are not under the scope of the exclusion grounds in the tendering stage, either.

6. Article 104(5) shall be applicable with the derogation that for a framework agreement to be concluded with more than one tenderer, paragraph 4 shall apply to each tenderer participating in the framework agreement.

1. If the estimated value of public works does not reach HUF 300 million, the contracting authority may, according to his choice, conduct the procurement procedure either in accordance with the rules on open procedures or in accordance with the rules on negotiated procedures without prior publication at national level, with the differences laid down in this Article, except where the public contract is financed entirely or partly by European Union funds. The application of the procedure laid down in this Article is subject to the condition that, according to the knowledge of the the contracting authority, there is a sufficient number of economic operators who are able to perform the procurement, as required by this Act in order to ensure fair competition. Procurements below the threshold set out in this paragraph may also be conducted in a procurement procedure launched by a notice specified in Article 112(1)(a) or a notice under the provisions set out in Article 112(1)(b). Upon applying the rules on open procedures, paragraphs 2-4 and 6-7 shall apply, while upon applying the rules on negotiated procedures without prior publication, paragraphs 5-7 shall apply.

2. The contracting authority shall ensure genuine competition and, instead of publishing a notice launching the procedure, it shall directly send the invitation to tender at the same time, in writing to at least five economic operators. The contracting authority shall not establish suitability criteria in the procedure. The invitation to tender shall only be sent to economic operators who are reliable professionals and able to perform the procurement. When selecting the economic operators to be invited to submit a tender, the contracting authority shall act in a non-discriminatory manner, shall comply with the principle of equal treatment and, if possible, shall enhance in particular the participation of micro, small or medium-sized enterprises. The economic operators invited to tender shall, if possible, vary in the different procedures. A period of five days shall be applied instead of the period of ten days set out in Article 80(5).

3. The provision on the minimum time limit for submission of tenders in open procedures, shall not apply. No notice shall be published on the modification of the time limit for submission of tenders, the amendment of the invitation to tender or the procurement documents or the revocation of the invitation to tender; prior to the expiry of the original time limit, the economic operators invited to tender shall be informed thereof at the same time, directly, in writing by the contracting authority.

4. Only the economic operators invited to tender may submit their tender in the procedure. Economic operators invited to tender may not submit joint tenders. Any economic operator invited to tender may submit a joint tender with any other economic operator not invited to tender by the contracting authority.

5. In the case of application of the rules on negotiated procedures without prior publication of a contract notice, paragraph 2 shall apply accordingly. Article 103(1)-(2), (4) and (6) shall not apply.

6. Article 71 shall apply, except that the contracting authority shall not be obliged to request a further supply of missing information – without expressly referring to this fact in the procurement documents -, if the additional supply of missing information were necessary in relation to a document submitted in the framework of a supply of missing information or an economic operator nominated in the framework of a supply of missing information.

7. Simultaneously with launching the procedure, the contracting authority shall make publicly available in the EPPS the notice launching the procedure, the procurement documents and, without delay upon the opening of tenders, the name and address of the economic operators invited to tender and the minutes taken on the opening of tenders.

1. Public supplies may also be awarded in an electronic bidding process, at the option of the contracting authority, in accordance with the rules on open procedures at national level, with the differences laid down in this Article and in accordance with the detailed rules, which are different from those stipulated in this Act, on electronic biddings set out in a government decree. Electronic bidding means a procurement procedure in which the contracting authority conducts an electronic auction in accordance with the detailed rules laid down in Article 108 and in the relevant government decree, without requiring the submission of tenders before the auction.

2. The notice launching the procedure is not subject to Article 50(2)(n)-(p) and (r), no suitability criteria may be set by the contracting authority in the procedure and the contracting authority shall rule out the possibility of submitting variant (alternative) offers. The notice launching the procedure shall include the time limit for submission of the application for registration in the procedure. When applying accordingly the rules on open procedures, time limit for participation shall mean the time limit for submission of the application for registration in the procedure.

3. Application for registration in the procedure may be submitted, within the time limit set therefor, by economic operators who could submit a tender in an open procedure. The application for registration shall include the name, address (seat, residence) of the economic operator. The contracting authority shall send the confirmation of the acceptance or the rejection of the application for registration and the reasons therefor, not later than two business days after the submission of the application for registration, to the address given by the economic operator. It is neither possible to supply missing information nor to request the provision of information in relation to the application for registration; if an application for registration is rejected by the contracting authority, the economic operator concerned may submit a new application for registration. The rejection of the application for registration shall always be based upon objective grounds, in accordance with the principles of non-discrimination and equal opportunities, the application may be rejected in particular where the application for registration was submitted after the expiry of the time limit set therefor. Registration shall not be subject to the provision of a tender guarantee.

4. The tenderer shall have the right to modify or withdraw his tender until the closing date of the electronic bidding. The contracting authority shall be bound by the stipulations of the notice launching the procedure and the procurement documents from the date of expiry of the time limit for submission of the application for registration, while the tenderer shall be bound by his offer made in the electronic bidding from the closing date of the electronic bidding. Where the contracting authority indicated in the notice launching the procedure that tenderers would be invited to submit a professional tender following the closing date of the electronic bidding, the tenderer shall be bound by the contents of his professional tender from the time limit for the submission thereof, however, when setting the validity period, the starting date of such period shall always be based on the closing date of the electronic bidding.

5. The contracting authority, in accordance with Article 69, shall invite the tenderer or tenderers to submit the declarations specified in Article 66(6) as well as Article 67(1) and other documents, in particular the professional tender, required by an act of legislation or the notice launching the procedure, where appropriate. No reading sheet shall be submitted by the tenderers.

6. Article 68 and Article 73(1)(a) and (d) shall not apply in the procedure. The contracting authority shall declare the procedure unsuccessful, if no application for registration has been submitted.

1. The contracting authority may develop independent procedural rules not subjected to the provisions set out by Part Two of this Act.

2. The type of procedure chosen by the contracting authority may not be changed by him in the course of the procurement procedure. If the contracting authority develops independently the rules concerning the procedure to be conducted in the course of the procurement procedure, those rules shall be included in the notice launching the procedure. The notice launching the procedure shall ensure in all cases that, on the basis of it, the economic operators are able to submit appropriate tenders or requests to participate with equal opportunities.

3. The notice launching the procedure shall state all the information necessary for appropriate tendering (request to participate) by the economic operators, in particular the most important elements of the contract to be awarded (the subject-matter of the procurement, the quantity, the contract terms) and a short description of the way of awarding (award criteria and method), the time limit for submission of tenders (time limit to participate) and the information concerning the way of contacting the contracting authority. The contracting authority shall be bound to arrange for the opening of the tenders at the time and, in case the opening does not take place in an electronic form in purview of this Act, place indicated in the notice launching the procedure. The invitation shall be published by the contracting authority in a notice drawn up pursuant to the standard form specified in a separate act of legislation.

4. In the notice launching the procedure the contracting authority shall be entitled to prescribe the application of one or more ground for exclusion set out in Articles 62-63, however, exclusion grounds other than those set out by this Act may not be prescribed. The contracting authority shall be bound to provide for the application of the exclusion grounds specified in Article 62 (1)(h)-(k) and (m). As regards suitability, the contracting authority may provide for other objective suitability criteria and way of certification than the certification of suitability criteria set out in the separate act of legislation, but the provisions set out in Article 65 (3) shall be applied in such cases as well.

5. For the purposes of establishing the procedural rules according to paragraph 1, the contracting authority shall be bound to ensure the public nature of procedures to the appropriate degree, in compliance with this Act.

6. The contracting authority shall ensure the right to participate for all the economic operators established in the European Union, mutual recognition of diplomas, certificates and other evidence of formal qualifications, as well as provision of information on the time limits suitable for the submission of tenders (requests to participate), development of the regulations providing preliminary information on the applicable procedural rules and respect of the principle of non-discrimination and equal treatment when the decision closing the procedure is taken.

7. The subject-matter of the contract shall be described by the contracting authority in a non-discriminatory way. The technical specifications may not be set by the contracting authority in such a way as to exclude certain economic operators or goods from the procedure or to result in their inappropriate, discriminatory or preferential treatment. If the precise and intelligible description of the subject-matter of the public procurement justifies reference to a specific make or source, or type, or a particular process, activity, person, patent or trade mark, the specification shall state that this was justified only by the need to specify the subject-matter precisely, and such a reference shall be accompanied by the word “or equivalent”.

8. The contracting authority shall inform in writing tenderers, candidates and - before the opening of tenders - the economic operators who have expressed their interest in the procedure about all the decisions and information affecting the results of the procedure and the detailed justification thereof as soon as possible but not later than three business days after the decision. After completion of the evaluation of tenders, the contracting authority shall be bound to draw up a written summary which provides information on the evaluation of tenders and the reasons for the selection of the winning tender and to send that written summary to all tenderers at the same time.

9. For the purposes of establishing the individual procedural rules pursuant to paragraph 2, the contracting authority shall be bound to provide for the grounds for invalidity specified in Article 73(1) and shall be entitled to provide for the grounds for invalidity specified in Article 72(2) and (3), with the proviso that the ground for invalidity specified in Article 73(1)(c) shall only apply in case of the prescription of the ground for exclusion specified therein and Article 73(1)(d) shall only apply in case of the prescription of suitability criteria. Article 73(4) and (6) shall apply accordingly. The provisions set out in Article 75(6) shall apply.

10. In the course of the procedure the provisions set out in Articles 44 and 45 shall be applied accordingly.