Act CXLIII of 2015 on Public Procurement (Public Procurement Act), any economic operator that submitted a tender in a public procurement procedure qualifies as a tenderer.

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PARTICIPATION IN A PUBLIC PROCUREMENT PROCEDURE

Under Act CXLIII of 2015 on Public Procurement (Public Procurement Act), any economic operator that submitted a tender in a public procurement procedure qualifies as a tenderer.

Kulcsszavak: Public procurement, E-procurement, EKR, Tender, Participation, Procedure, Contracting authority, Tenderer, Public procurement documentation, Certification

The subject of procurement

The subject of a public procurement contract may be the procurement of supplies, provision of services, or public works. The rules of public procurement also apply to the conclusion of works and services concessions.

Public procurement document

All documents produced or referred to by the contracting authority to describe or determine the subject-matter of the public procurement procedure, in particular the contract notice announcing the procedure, the prior information notice used to announce the procedure, the technical specifications, the descriptive document, additional information, proposed conditions of contract, models for the presentation of documents by economic operators, detailed price chart, or the unpriced budget. Familiarity with, interpretation, and use of these documents is essential for participating in the procedure.

The publication of the contract notice

In the case of public procurement procedures where the value reaches the EU threshold, the contract notice is published in the Official Journal of the European Union; if it does not, the notice is published in the Hungarian Public Procurement Bulletin. The Hungarian Public Procurement Bulletin also publishes the contract notices published by the Official Journal of the European Union for the sake of providing information.

Procedure types

The type of procedure to be used depends on the subject and estimated value of the procurement. Types of public procurement procedures:

1) open procedure,

2) restricted procedure,

3) innovation partnership,

4) competitive procedure with negotiation,

5) competitive dialogue,

6) negotiated procedure without prior publication.

  1. Open procedure – may be used both in EU and national procedures at any time, at the discretion of the contracting authority. Open procedures are single-stage, meaning the tenderer proves eligibility and the absence of any grounds for exclusion in the same time when submitting its tender. No negotiations may take place in open procedures.
  2. Restricted procedure – may be used both in EU and national procedures at any time, at the discretion of the contracting authority. A two-stage procedure consisting of a pre-selection and a tendering phase. In the pre-selection stage launched with the call for tenders, any interested economic operator may submit a request for participation. The pre-selection stage consists of the submission of requests for participation only; tenders may neither be required nor submitted. Tenders are submitted in the second, tendering stage. After receiving the requests for participation, the contracting authority calls upon the applicants who were found suitable to submit tenders.
  3. Innovation partnership – the basis for the use of an innovation partnership is determined by the subject of procurement: the development or procurement of innovative products, services, or public works. The contracting authority has to provide justification for selecting this procedure type by describing the innovation of the subject of the procurement and indicating the legal title specified by Section 86(1) of the Public Procurement Act.
  4. Competitive procedure with negotiation - may be used only in the cases set out under Section 85(2) of the Public Procurement Act and if the conditions specified in the Public Procurement Act are met. The procedure consists of two stages: the pre-selection and the tendering stages, held in line with the rules applicable to restricted procedures. In the tendering stage, the contracting authority negotiates with the economic operators who have submitted tenders and decides on the winning tenderer on the basis of the tenders submitted for the final call.
  5. Competitive dialogue - may be used in the same cases as the competitive procedure with negotiation. The procedure consists of three stages: pre-selection, dialogue, and tendering. All interested economic operators may submit a request for participation in the course of the competitive dialogue. The contracting authority holds negotiations with the selected applicants for participation, who have submitted solution proposals prior to the dialogue. The consultation aims to exactly define and describe the subject of procurement, based on which the selected applicants for participation can submit their tenders.
  6. Negotiated procedure without prior publication - may be used if the conditions set out in the Public Procurement Act and its implementing regulations are met. In light of the fact that negotiated procedures without prior publication of a contract notice tend to restrict and limit competition, the law allows those only under special conditions and if strict rules are followed. Under the Public Procurement Act, the contracting authority has to inform the Public Procurement Authority of starting a negotiated procedure without prior publication of a contract notice, indicating the facts in support of the legal basis for doing so. Sections 98-103 of the Public Procurement Act set out the main rules for the procedure. The procedure itself is single-stage and contains no pre-selection stage. Negotiations are held after the economic operators invited to participate at the time of the procedure was launched have submitted their tenders.

Tenderer

A tenderer is an economic operator who (which) submits a tender in a public procurement procedure. Economic operator means any natural person, legal person, individual company or organisation having legal capacity according to its personal law, or groups of such persons or organisations, who (which) offer public works or the supply of goods or services. By specifying the grounds for exclusion and the selection criteria, the contracting authority keeps those economic operators in the competition who are reliable and suitable for the subsequent performance of the contract. Tenders or requests to participate may be submitted by several economic operators jointly (joint tenders).

Selection criteria and the method of certification

Under the EU’s rules of procedure, the selection criteria that may be applied by traditional contracting authority can apply to:

  1. economic and financial standing
  2. technical and professional ability
  3. the enrolment in the register of the country in which the economic operator is established or the permit, licence, or membership in a professional organisation or chamber prescribed in the country of establishment, where this is necessary for the performance of the contract.

Government Decree No 321/2015 of 28 October 2015 lays down the detailed rules for determining the possible methods for certifying eligibility and defining the selection criteria. In addition to those specified by Government Decree No 321/2015 of 28 October 2015, other objective selection criteria and certification methods may also be required in the case of procurement by public service providers. In procedures with values less than the EU threshold, other objective selection criteria and certification methods may also be required in addition to those specified by Government Decree No 321/2015 of 28 October 2015.

Grounds for exclusion and the system of selection criteria

The Public Procurement Act specifies the conditions that, if met, exclude the participation of certain economic operators from the public procurement procedure (Sections 62-63 of the Public Procurement Act), and also lays down the selection criteria that contracting authorities may choose to apply (Section 65 of the Public Procurement Act). Tenderers have to prove the absence of grounds for exclusion and compliance with the selection criteria in the manner required by Government Decree No 321/2015 of 30 October 2015. With regards to grounds for exclusion, the law differentiates between absolute (i.e. mandatory) and relative (i.e. optional) grounds for exclusion. Absolute grounds for exclusion are those objective conditions in which case, if met, the economic operator in question has to be excluded from the procedure regardless of all other factors. Section 62 of the Public Procurement Act sets out the absolute grounds for exclusion. If the relative grounds for exclusion are met, the contracting authority may consider and decide whether to use them or not. Section 63 of the Public Procurement Act sets out the relative grounds for exclusion.

Excluded tenderers

Under the Public Procurement Act, the contracting authority shall exclude any economic operator who provide false data or statements, if the legal conditions are met. The Public Procurement Authority keeps records of the excluded tenderers. The data in the ‘List of Excluded Tenderers’ do not qualify as authentic and are for reference only.

The compilation of tenders

e-Certis - an electronic system created and maintained by the European Commission to map the certificates and statements required by the contracting authorities in different Member States in connection with grounds for exclusion and selection criteria. Thus, if the contracting authority wishes to check the suitability of a certificate submitted in the public procurement procedure by an economic operator registered in another Member State, it can check the data of the Member State in e-Certis. Economic operators can also use e-Certis to gain information on the certificates and statements in the country of the contracting authority in connection with the grounds for exclusion and selection criteria specified in the given procedure.

European Single Procurement Document (ESPD) - a standard form used by the European Union. As a general rule, in the case of procurement with a value that reaches the EU threshold, economic operators first have to use this form to certify the absence of grounds for exclusion and compliance with the selection criteria; proof shall be requested from the tenderers who have submitted the most advantageous tenders (see Section 69 of the Public Procurement Act and Section 1 of Government Decree No 321/2015 of 30 October 2015). As a general rule, the ESPD is to be used in EU procedures, though contracting authorities are also required to accept it in national procedures as well if the tenderer submits an ESPD used in a previous public procurement procedure under Government Decree No 321/2015 of 30 October 2015, and if the data therein are true.

Opening of tenders

In the interest of ensuring transparency and the fairness of competition, the Public Procurement Act regulates the details of opening tenders.

The time of opening tenders - The documents containing the tenders or requests to participate shall be opened after the time specified by law has elapsed following the expiry of the time-limit for the submission of tenders or the deadline to participate. Tenders and requests for participation submitted electronically are opened by the electronic public procurement system (EKR).

Data to be disclosed - Upon opening the tenders, the names and addresses (seat or residence) of the tenderers, as well as the main quantifiable details to be assessed according to the award criteria, shall be announced. Before the opening procedure of the tenders is started, the amount of the funds available for the performance of the contract may be disclosed. The contracting authority shall draw up minutes of the opening of the tenders and requests to participate as well as of the disclosure of the various data, and shall send those minutes to all tenderers and applicants within five days from the day of opening. The submission of tenders or requests to participate received after the expiry of the deadline shall also be recorded in the minutes, and those minutes shall be sent to all tenderers and applicants, including the belated ones.

Corrections and information requests

The request for missing information is aimed at aligning the tender or the request to participate with the requirements set out in the procurement documents or relevant legislation so the tender will not be considered invalid due to formal errors or deficiencies. ‘Request for missing information’ and ‘information request’ are not identical terms. ‘Request for missing information’ means the rectification of deficiencies and providing supplementations and amendments in the interest of fulfilling the conditions of the call for tenders; ‘information request’ means a clarification of content. The contracting authority is obligated to provide a possibility for all tenderers and applicants for participation to provide missing information with the same conditions. The request for missing information or the information request shall be sent by the contracting authority directly to the tenderer or applicant, informing all other tenderers or applicants of this fact, specifying the deadline, in the case of requests for missing information, the information to be supplied.

Voluntary provision of missing information - for the time available to the tenderer or applicant to supply missing information, the tenderer or applicant may also supply any other missing information the provision of which has not been requested by the contracting authority.

Additional request for missing information - if the contracting authority perceives that information is missing which has not been requested in previous request(s) for missing information, it shall be obliged to issue an additional request for missing information. The missing information requested by prior requests may not be provided in the course of a subsequent supply of missing information.

Evaluation

As part of evaluation, the contracting authority ranks the tenders according to the award criteria. Under the title ‘the selection of the winning tenderer’, the Public Procurement Act specifies the possible award criteria, including the extent to which contracting authorities may choose from among these, the guarantee requirements that the chosen award criteria have to meet, and the level of publicity they have to be provided.

Award criteria - under Section 76 of the Public Procurement Act, the contracting authority is obligated to choose the tender that is economically the most advantageous, with the provision that either the lowest price, the lowest cost, or the best price-value ratio may be used as award criteria. The contracting authority may choose to evaluate tenders based solely on the lowest price only if the contracting authority’s needs can only be satisfied by a particular product or service which meets specific qualitative and technical requirements and the evaluation of other technical characteristics would not support the selection of the best tender. The contracting authority shall not choose to evaluate based on the lowest price only in case of design, engineering, and architectural services or public works.

Announcement of results

Contract award notice - the contract award notice shall be sent for publication by the contracting authority no later than ten business days after the conclusion of the contract or, in the absence of a signed contract, the decision of the contracting authority declaring the procedure unsuccessful. The procurement procedure shall be concluded by the publication of the notice.

Written summary - upon completing the evaluation of the tenders and requests to participate, the contracting authority shall prepare a written summary of the tenders and requests to participate according to the standard forms specified in separate legislation. The contracting authority shall send the written summary to all tenderers and applicants for participation at the same time. If, after the sending of the results, the contracting authority finds that the result was unlawful and a modification provides legal remedy thereto, it may modify on one occasion the written summary, where necessary, retract the communication on invalidity, or rescind the contract already concluded, within twenty days from the dispatch of the written summary to the tenderers, in the case of a written summary concerning the pre-selection stage until the expiry of the deadline to submit tenders or, where the initial situation may not be restored anymore, terminate the contract immediately. If the communication on the invalidity of a request to participate is retracted by the contracting authority in the context of the modification, it can send a call for tenders to the applicant concerned by setting a new deadline for the submission of tenders.

Providing information about the outcome of the procedure - the contracting authority shall inform the tenderer or the applicant in writing of the results of the procedure or the participation stage, the classification of their tender or request to participate as invalid, the exclusion of an economic operator, and the relevant reasons thereof in detail, as soon as possible after the decision to this effect, but within three business days at the latest.

If certain procedural actions are not carried out (e.g. reply to a request for missing information, the submission of certificates), the contracting authority may exclude the tenderer from the public procurement procedure or declare the tender invalid.

The deadlines specified in the Public Procurement Act shall apply to public procurement procedures. The contracting authority shall set the deadline for submitting tenders and request for participation in the call for tenders.

The tender documentation shall include the electronic statements requested by the contracting authority and, if requested, the European Single Procurement Document, the reading sheet, and other required documents or documents attached by the tenderer.

In the case of procedures involving the EKR, the documents have to be submitted electronically. For these, the contracting authority may provide a form in the EKR, which the economic operator shall have to download and attach to its tender in the EKR signed and scanned or electronically signed. The documents uploaded by the contracting authority can be downloaded by clicking on the file name. The tenderer may choose to attach additional documents to its tender.

Participation in a public procurement procedure is free of charge for tenderers; the tender documentation required for submitting the tender can be found under the List of documents to be submitted tab in the EKR.

In case of legal remedy, an administrative service fee shall be payable for the procedure launched by application before the Public Procurement Arbitration Board. Decree No 45/2015 of 2 November 2015 of the Minister heading the Prime Minister’s Office specifies the amount of the administrative service fee. The amount of the administrative service fee depends on the value of public procurement procedure in question and the number of elements being contested, and so its amount varies from case to case.

The contracting authority has the authority to make the various decisions during the course of the public procurement procedure.

In the interest of the quick and effective administration of disputes involving public procurement procedures, the parties in question may turn to the Public Procurement Arbitration Board.

In legal remedy procedures, communication shall be by electronic means only.

The Public Procurement Arbitration Board has jurisdiction in the whole territory of Hungary. Representation provided by a responsible accredited public procurement consultant, lawyer, or legal adviser is required in legal remedy procedures at the Public Procurement Arbitration Board. The Budapest-Capital Regional Court has competence in reviewing the decisions of the Arbitration Board.

Procurement procedures shall be conducted in Hungarian; however, the contracting authority may allow (but may not require) the use of another language besides Hungarian.

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Act CXXIX of 2015 on Public Procurement

Government Decree No 321/2015 of 30 October 2015 on the method for certifying eligibility and reasons for exclusion in public procurement procedures, and on the method for defining public procurement technical specifications

Government Decree No 322/2015 of 30 October 2015 on the detailed rules on the public procurement of works contracts and the related design and engineering services

Government Decree No 424/2017 of 19 December 2017 on the detailed rules of electronic administration

Decree No 45/2015 of 2 November 2015 of the Minister heading the Prime Minister’s Office on the administrative service fee payable for Public Procurement Arbitration Board procedures

Decree No 40/2017 of 27 December 2017 of the Minister heading the Prime Minister’s Office on the rules pertaining to the maintenance and operation of the electronic public procurement system

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