Közbeszerzési Hatóság

Chapter III - Scope of the Act (4-24. §)

4. §

1.         For the purposes of awarding public contracts, works or service concessions with a value equal to or exceeding the thresholdsspecified in Article 15(1), the procurement procedure or the concession award procedure under this Act shall be conducted by entities defined as contracting authorities in Articles 5-7. (This amendment entered into force on 1 January 2017.)

2.         For the purposes of public contracts a procurement procedure, and for the purposes of works or services concessions a concession award procedure shall be conducted.

3.         Contracting authorities under Article 195(1) shall invite at least three tenders – in compliance with the implementation decree of this Act, with the exclusions stipulated therein - also prior to the conclusion of their contracts under Article 8(2)-(6), if the contract value equals HUF 1 million, but does not reach the national thresholds specified in Article 15(1)(b). The provisions of this Act shall be applied to such procurements only if it is prescribed by the implementation decree of this Act. (This amendment entered into force on 1 January 2017.)

Contracting authorities

5. §

1. For the purposes of this Act, the following entities are subject to the obligation to conduct procurement procedures:

  1. ministries,
  2. the central purchasing body designated by the Government,
  3. the State, all the budgetary authorities, public foundations, local governments, local and national self-governments of nationalities, associations of local governments and self-governments of nationalities, associations of local governments for the purpose of regional development, development councils of sub-regions;
  4. legal persons specified in Article 9(1)(h)-(i);
  5. entities having legal capacity, which are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character or which pursue any of such activities, provided that one or more entities specified in points (a)-(e), the Parliament or the Government can exercise, either separately or together, a dominant influence over it or its operation is financed for the most part by one or more of those entities (bodies);

2.       In relation to procurements to be realised using subsidies, entities or persons not covered by paragraph 1 whose procurement is subsidised directly by one or more entities or persons subject to paragraph 1 to an extent exceeding 50% in case of procurements equalling or exceeding EU threshold, and to an extent exceeding 75% in case of procurements equalling or exceeding national threshold but not reaching EU threshold, shall conduct procurement procedures, provided that the subject-matter of the procurement is (This amendment entered into force on 1 January 2017.)

  1. works which comprise civil engineering activities as listed in Annex I,
  2. works which comprise building work for hospitals, facilities intended for sports, recreation and leisure, school and university buildings and buildings used for administrative purposes or
  3. a service linked to works under points (a) or (b).

3.       In addition to the provisions set out in paragraph 2, in relation to procurements to be realised using non-repayable subsidies, not including non-repayable subsidies combined with financial instruments, entities or persons not covered by paragraph 1 whose public works, public supply or public services contract is subsidised directly by at least HUF 40 million by one or more entities or persons subject to paragraph 1, shall conduct procurement procedures, except if the procurement is realised (This amendment entered into force on 15 June 2016.)

  1. using an investment subsidy set out in a single government decision,
  2. using single job creation subsidy,
  3. using education, furthermore vocational training centre establishment and development subsidy,
  4. using research-development and innovation aimed subsidy,
  5. using the subsidy of undertakings’ investment aimed at reindustrialisation or (This amendment entered into force on 1 January 2017.)
  6. using any subsidy applied for prior to 1 November 2015, which is funded by the European Union or from national resources (This amendment entered into force on 24 December 2015.)

4.         If an entity not covered by paragraph 1 and 2 conducts a procurement procedure under this Act on the basis of an obligation assumed by it voluntarily or in a contract, or on the basis of an obligation set out by a separate act of legislation, the entity in question shall be subject to the provisions set out herein.

5.         Paragraph 3 shall not be applied, if the Government has granted exemption from its application in a single government decision based on the proposal of the minister responsible for public procurement. Such exemption may be requested, if – considering the particularities of the procurement to be realised using subsidies - the application of the procurement procedure did not enhance the effective use of public funds and the procedure of the entity under paragraph 3 ensures the optimum use of the subsidy. By 31 May each year, the texts of all single government decisions taken on such exemptions during the previous year shall also be published by the Government, summarized in an informative notice in the Hungarian Official Gazette (Magyar Közlöny). (This paragraph entered into force on 1 January 2017.)

6. §

1.         For the purposes of this Act, in the course of procurements conducted by public service providers with the aim of performing their public service activity, contracting entities are entities referred to in Article 5(1) which pursue one of the following activities or were established for the purpose of pursuing such activity

  1. in connection with the production, transport or distribution of drinking water, the provision or operation of fixed networks intended to provide a service to the public or the supply of drinking water to such networks;
  2. in connection with the production, transport or distribution of gas or heat, the provision or operation of fixed networks intended to provide a service to the public or the supply of gas or heat to such networks;
  3. the provision or operation of networks providing a service to the public in the field of transport by railway, automated systems, tramway, trolley bus, bus or cable;
  4. the exploitation of a geographical area

da) for the purpose of the provision of airports and maritime or inland ports or other port facilities to carriers by air, sea or inland waterway or passenger carriers,

db) for the purpose of extracting oil or gas or

dc) for the purpose of exploring for, or extracting coal or other solid fuels;

    e. the provision of postal services; (This amendment entered into force on 1 January 2017.)

  1. the provision of other services than postal services, provided that the contracting authority also offers postal services under point (e), which are not covered by Article 13. (This point entered into force on 1 January 2017.)

2.         The procurement procedure of a public service provider whose activity is related to drinking water under Article 1(a) qualifies as a public service activity, if it is connected with

  1. hydraulic engineering projects, irrigation or land drainage, provided that the volume of water to be used for the supply of drinking water represents more than 20 % of the total volume of water made available by such projects or irrigation or drainage installations, or
  2. the disposal or treatment of sewage.

3.         As regards transport services under Article 1(c), a network shall be considered to exist where the service is provided under operating conditions laid down by a competent authority, such as conditions on the routes to be served, the capacity to be made available or the frequency of the service.

4. For the purposes of Article 1 (a) and (b), supply shall also mean retail and wholesale sales.

 

7. §

1.         For the purposes of this Act, in the course of procurements conducted by public service providers with the aim of performing their public service activity, economic operators which are not subject to Article 5(1) and which pursue one of the public service activities under Article 6(1)-(2) or were established for the purpose of pursuing such activity qualify as contracting entities, provided that one or more entitity (entities) referred to in Article 5(1) can exercise, either separately or together, a dominant influence over them.

2.         For the purposes of this Act, in the course of procurements conducted by public service providers with the aim of performing their public service activity, economic operators which are not subject to Article 5(1) or paragraph 1 and which pursue one or more of the public service activities under Article 6(1)-(2) on the basis of special or exclusive rights, qualify as contracting entities.

3.         For the purposes of paragraph 1 and 2, an activity shall not be considered to be a public service activity, if

  1. the production of gas or heat by the contracting entity concerned is the unavoidable consequence of carrying out an activity other than its public service activity and, furthermore, the supply to the public network is aimed only at the economic exploitation of such production and amounts to not more than 20 % of the contracting entity’s turnover on the basis of the average for the preceding three years, including the current year;
  2. the production of electricity or drinking water by the contracting entity concerned takes place because the consumption of electricity or drinking water is necessary for carrying out an activity other than its public service activity and, furthermore, supply to the public network depends only on that contracting entity’s own consumption and has not exceeded 30 % of that contracting entity’s total production of energy or drinking water, on the basis of the average for the preceding three years, including the current year.

4.         For the purposes of paragraph 2, ‘special or exclusive rights’ means rights based on a legislative or administrative provision (administrative authorisation) the effect of which is to limit the conduct of public service activities defined in Article 6(1)-(2) to one entity or a limited number of entities, and which substantially affects the ability of other entities to carry out such activity.

5.         Rights which have been granted by means of a procedure in which adequate publicity has been ensured and where the granting of those rights was based on objective criteria shall not constitute special or exclusive rights within the meaning of paragraph 2. Such procedures include:

  1. authorisation procedure concerning activities in the natural gas industry under the Act on Natural Gas Supply;
  2. authorisation or tendering procedure concerning the establishment of new power generation capacities (power plants) under the Act on Electricity;
  3. authorisation of the provision of a postal service subject to authorisation under the Act on Postal Services
  4. the authorisation of prospecting, exploration and extraction of hydrocarbons under the Mining Act;
  5. procurement procedures for public passenger transport services by bus, tram, railway or metro under Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos  1191/69 and 1107/70, provided that the procurement procedures in question comply with Article 4(3)-(4) and Article 5(3) of the abovementioned Regulation.

Subject-matters of public procurements

8. §

1.    Public procurement is the conclusion of public contracts as well as works or service concessions under this Act. Subject-matters of public contracts shall be the following: public supply, public works or public services.

2.    Public supply means the acquisition by a contracting authority, with or without option to buy, of rights of ownership or right of use, of exploitation of negotiable movable property which can be taken into possession. Public supply shall in addition include installation and putting into operation.

3.    Public works means one of the following types of work to be ordered (and taken over) by a contracting authority:

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

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

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

4.    Public service contracts are procurements which are not covered by the definition of public supply nor that of public works having as their object in particular an activity ordered by a contracting authority.

5.    Works concession is a contract for pecuniary interest concluded in writing by a contracting authority under this Act, whereby the contracing authority purchases the public works referred to in paragraph 3 and the consideration by the contracting authority for the works to be carried out consists either of the right to exploit the work for a specified period of time or of this right together with monetary consideration; the operational risk related to the exploitation shall be borne by the concessionaire.

6. Service concession is a contract for pecuniary interest concluded in writing by a contracting authority under this Act, whereby the contracing authority purchases the services referred to in paragraph 4 and the consideration by the contracting authority consists either of the right to exploit the service for a specified period of time or of this right together with monetary consideration; the operational risk related to the exploitation shall be borne by the concessionaire.

7. For the purposes of paragraph 5 and 6, the concessionaire is deemed to assume operating risk, where it is not guaranteed that the concessionaire can recoup the investments made or the costs incurred in establishing and operating the works or the services which are the subject-matter of the concession. The operating risk shall encompass demand or supply risk or both and its existence may only be established on the basis of risks stemming from factors which are outside the control of the concessionaire.

8. The subject-matter of the public procurement shall be specified by reference to the Common Procurement Vocabulary (hereinafter referred to as ‘the CPV’) as well.

Exceptions

9. §

(1)  This Act shall not apply to

  1. procurements in the fields of defence and security specified in a separate act of legislation,  with the proviso that such procurements shall be subject to the rules set out in a separate act of legislation; furthermore if the  procurement is also exempt from the rules set out in the separate act of legislation and in case of procurements subject to the exception specified in point (ba), the competent committee of the National Assembly has granted exemption from the rules set out in the separate act of legislation in its preliminary decision based on an initiative satisfying the conditions laid down in the separate act of legislation;[1]
  2. procurements which are not subject to point (a),

    (ba) if the application of the rules on public procurements would oblige Hungary to supply information the disclosure of which would be contrary to the essential interests of the country’s security,

    (bb) where the protection of the essential security interests, national security interests of Hungary, the protection of classified information or the special security measures needed cannot be guaranteed by the security measures that may be required in procurement procedures, and purchase of which is subject to an exemption from the application of this Act granted by the competent committee of the National Assembly in its preliminary decision based on an initiative satisfying the conditions laid down in a separate act of legislation;

  3. procurements realised pursuant to a separate procedure laid down in an international agreement or arrangement, if the international agreement or arrangement concluded in conformity with the TFEU with one or more third countries is intended for a purchase related to the joint implementation or exploitation of a project, with the proviso that the Commission shall be notified of the conclusion of the international agreeement or arrangement;
  4. procurements realised pursuant to a separate procedure laid down in an international agreement or arrangement, where the international agreement or arrangement relates to the stationing, passing through, deployment of troops (military forces), including in the case of units deployed (transferred), replaced to the operational area the purchases related to such deployment (transfer), replacement
  5. in cases where international law obligations require that the contracting authority realise the procurement according to a separate procedure prescribed by an international organization;
  6. procurements realised in accordance with rules specified by an international organisation or international financing institution, if the procurements concerned are fully financed by such organisation or institution or if the public contracts are co-financed for the most part by an international organisation or international financing institution and the parties agree on the application of procurement procedures other than those set out herein;
  7. procurements which are exclusively aimed at allowing the contracting authority to make available or utilize a public electronic communication network or the provision of one or more electronic communications services for the public (This amendment entered into force on 1 January 2017.)

  8. the contract concluded by a contracting authority under Article 5(1) with a legal person over which the contracting authority exercises a control similar to that exercised over its own organisational units, the contracting authorities jointly have decisive influence on setting the legal person’s strategic goals and on making key decisions relating to its operation; furthermore, the legal person in question is not exposed to any direct private capital participation and more than 80 % of its annual net turnover derives from the perfomance of contracts concluded or to be concluded with the controlling contracting authority or with any other legal person over which the contracting authority exercises control under this point;
  9. the contract concluded by a contracting authority under Article 5(1) with a legal person over which the contracting authority exercises joint control with other contracting authorities and the control in question corresponds to the one exercised over its own organizational units, the contracting authorities jointly have decisive influence on setting the legal person’s strategic goals and on making key decisions relating to its operation; furthermore, the legal person in question is not exposed to any direct private capital participation and more than 80 % of its annual net turnover derives from the perfomance of contracts concluded or to be concluded with the controlling contracting authority (contracting authorities) or with any other legal person over which the contracting authority exercises control under this point;
  10. the contract concluded by a contracting authority under Article 5(1) with another contracting authority or contracting authorities aimed at establishing cooperation between the contracting authorities concerned to carry out public service missions, provide public services or realize common objectives of general interest, with the proviso that not more than 20 % of the contracting authorities’ annual net turnover related to their cooperation activity derives from the open market;
  11. the supply, services or works purchased by the central purchasing body in a procurement procedure, on behalf of the entities for the benefit of which the public contract has been concluded by the central purchasing body, as well as the purchase of ancillary services provided by the central purchasing bodies.

(2) The provisions set out in paragraph 1(h) shall be applicable if the legal person controlled concludes the public contract acting as a contracting authority with the contracting authority which exercises control over it or with any other legal person controlled by that contracting authority under paragraph 1(h).

(3) The provisions set out in paragraph 1(h) shall be applicable, if the State is a member of the legal person controlled. In such cases, the conditions according to paragraph 1(h) shall be applicable to the legal entity exercising ownership rights (the body directed by the minister or, if applicable, by another person directing a central administrative body) as a contracting authority.

(4) As regards paragraph 1(i), all the contracting authorities concerned shall be represented in the decision-making bodies of the legal person controlled. Each representing person may represent one controlling authority, more than one or all the controlling contracting authorities. The interests of the legal person controlled may not be conflicting with the interests of the controlling authorities.

(5) The conditions set out in paragraph 1(h)-(i) shall shall be fulfilled throughout the full term of the contract. If the abovementioned conditions are no longer fulfilled, the contracting authority may and shall terminate the contract.

(6) For the purposes of paragraph 1(h)-(i), the counter value of public services provided to a third party on the basis of the contracts shall be regarded as deriving from the performance of those contracts regardless whether this counter value is paid by the contracting authority or by the person using the public service.

(7) For the purposes of paragraph 1 (h)-(j), where the annual net turnover is not applicable in the case of the given contracting authority, the share of the activities done for the contracting authority or any other legal person controlled by the contracting authority shall be established on the basis of the costs incurred in relation to the abovementioned activities in a period of three years prior to the conclusion of the contract. If data concerning a period of three years preceding the conclusion of the contract is not available, the contracting authority shall only show that the abovementioned data are credible, particularly by means of business projections.

8) This Act shall not apply to services in the following cases:

  1. contracts for the acquisition of existing buildings or other immovable property or for the acquisition of other rights on immovable property;
  2. any public contract awarded by an audiovisual or radio media service provider for the acquisition, development, production or joint production by audiovisual or radio media service providers of any programme intended for providing audiovisual or radio media services; as well as contracts for programme provision or broadcasting time that are awarded by any contracting authority to an audiovisual or radio media service provider; furthermore, contracts for the acquisition, development, production, joint production of any programme intended for providing audiovisual or radio media services and contracts for broadcasting time; (This amendment entered into force on 1 January 2017.)

  3. contracts for arbitration, mediation and conciliation services;
  4.  legal services having any of the following subject-matters:

    (da) legal representation of a client by a lawyer in judicial proceedings before the courts, an arbitration, administrative procedure, conciliation or mediation, as well as legal advice given in relation to any of the proceedings referred to above,

    (db) document certification services provided by notaries,

    (dc) legal services provided by trustees or appointed guardians designated by law or designated by a court, as well as other legal services which are carried out under the supervision of the designating court,

    (dd) legal services which consist of the exercise of official authority in the Member State concerned;

  5. financial services covered by CPV code 66100000-1 (from 66110000-4 to 66190000-8) and related to the issue, sale, purchase or transfer of other financial instruments or securities specified by the Act on Investment Firms and Commodity Dealers, and on the Regulations Governing their Activities, central bank services and operations conducted within the framework of the European Financial Stability Facility and the European Stability Mechanism; (This amendment entered into force on 1 January 2017.)

  6. credit contracts and loan contracts under the Act on Credit Institutions and Financial Enterprises;
  7. employment relationship, employment relationship of public officials, governmental officials, state officials or public servants, fellowship employment under the Act on Public Officials, relationship of governmental project evaluators, employment relationship of public prosecutors, judges, law officers and the professional staff of law enforcement bodies, as well as the professional, contractual and voluntary reserve staff of the Hungarian Defence Forces (This amendment entered into force on 1 January 2017.)

  8. civil defence and danger prevention for the protection of citizens, provided by non-profit organisations or associations, and which are covered by CPV codes 75250000-3, 75251000-0, 75251100-1, 75251110-4, 75251120-7, 75252000-7, 75222000-8; 98113100-9 and 85143000-3, except patient transport ambulance services;
  9. public passenger transport services by rail or metro;
  10. political campaign services covered by CPV codes 79341400-0, a 92111230-3 and 92111240-6, purchased by a political party in the context of an an election campaign;
  11. where the service is provided by a contracting authority under Article 5(1) or by an association of contracting authorities on the basis of an exclusive right which they enjoy pursuant to a law or administrative decision, which is compatible with the TFEU;
  12. service contracts for research and development services which are covered by CPV codes 73000000-2 to 73120000-9, 73300000-5, 73420000-2 and 73430000-5, except where the benefits accrue exclusively to the contracting authority for its use in the conduct of its own affairs and the service provided is wholly remunerated by the contracting authority.

(9) This Act shall not apply to public contracts of a contracting entity providing services stipulated in Article 6(1)(e), if the public contracts are awarded for the following activities of the contracting entity: 

  1. added-value services linked to electronic postal services and provided entirely by electronic means (including the secure transmission of encrypted documents by electronic means, address management services, and transmission of registered electronic mail),
  2. financial services which are covered by CPV codes 66100000-1 to 66720000-3 and   financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC, and operations conducted with the European Financial Stability Facility and the European Stability Mechanism, including in particular postal money orders and postal giro transfers,
  3. philatelic services, or
  4. logistics services (services combining physical delivery or warehousing with other non-postal functions).

(10) In procurements under paragraph 1(b), the contracting authority is entitled to manage personal data concerning clean criminal record.

(11)   Due to national security interest, the contracting authority under Article 5 (1) (a)-(c) may restrict the retrieval of the data of public interest or the data disclosed due to public interest, which is processed in relation to procurements specified in paragraph (1) (b) herein, by considering the significance of the public interest in accessing the data and in restricting the access, maximum until the expiry of ten years as of the production of the data[3].

(12)  Access to the following shall not be restricted:

a) the decision of the body proceeding within its sphere of duties and competence in relation to the procurement,

b) the identity of the successful tenderer of the procurement procedure, furthermore,

c) the title, subject, value, duration, the name of the parties of the contract related to the procurement

specified in paragraph (1) (b) herein in compliance with paragraph (11) herein[4].


[1] This amendment entered into force on 1 August 2016.

[2] This amendment entered into force on 1 July 2016.

[3] This amendment entered into force on 1 August 2016.

[4] This amendment entered into force on 1 August 2016.

      Further exceptions applicable to contracting entities

      10. §

      1. In addition to the cases referred to in Article 9, this Act shall not apply to contracting entities in the cases referred to in Article 10-13.

      2. This Act shall not apply to contracts of contracting entities concluded for purposes of resale or hire to third parties, provided that the contracting entity enjoys no special or exclusive right to sell or hire the subject-matter of such contracts and other undertakings may obtain such rights subject to the same terms and conditions as the contracting entity.

      3. This Act shall not be applied by contracting entities under Article 7 to contracts which are intended for purposes other than the pursuit of a public service activity under this Act or are related to a public service activity pursued by the contracting entity in a non-EU member country, under conditions not involving the physical use of a network or geographical area within the European Union.

      4. The contracting entity shall provide information to the European Commission, at its request, through the Public Procurement Authority, on the activities, as well as group of goods or activities which are specified in paragraph 2 and 3 as exceptions.

      11. §

      This Act shall not apply to

      1. the water supply awarded by a contracting entity conducting a public service activity under Article 6(1)(a) related to drinking water;
      2. the supply of energy or fuels for the production of energy awarded by a contracting entity conducting a public service activity under Article 6(1)(b) related to gas or heat, as well as electricity;
      3. the supply of energy or fuels for the production of energy awarded by a contracting entity conducting a public service activity under Article 6(1)(db) related to the extraction of crude oil or natural gas;
      4. the supply of energy or fuels for the production of energy awarded by a contracting entity conducting a public service activity under Article 6(1)(dc) related to the exploration and exploitation of coal or other solid fuels. 
      12. §

      1. This Act shall not apply to

      1. contracts of contracting entities concluded with an affiliated company,
      2. where a joint venture which was established for the pursuing of a public service activity under this Act and whose participants are exclusively contracting entities concludes a public services contract with a company affiliated to one of the contracting entities participating in the joint venture in question,

      provided that at least 80% of the average turnover of the company defined in points (a) and (b), recorded in connection with public supply or services or public works within the European Union, for the preceding three years, derives from economic activities conducted with any other entity with which it has a relationship defined in point (a) above or with the contracting entity in question.

      2. Where the turnover of the company under paragraph 1, which concludes the contract with the contracting entity, is not available for the preceding three years, due to the date of its establishment or that of the commencement of its activities, it will be sufficient for that company to show that the turnover referred to in paragraph 1 is credible, particularly by means of credible business plans.

      3. Where several companies, which are affiliated to the contracting entity as specified in paragraph 1 (a), provide the contracting entity with the same or similar services, supplies or works, the total turnover deriving from the provision of services, supplies or works by these companies shall be taken into account.

      4. If the entity having a relationship specified in paragraph 1 with the contracting entity, is not a contracting authority under this Act, and such entity intends to employ a third entity – not covered by the scope of subjects to this paragraph – to an extent exceeding 25% for the performance of the contract concluded with the contracting entity, the exception pursuant to paragraph 1 may only be applied, if the entity having a relationship specified in paragraph 1 with the contracting entity conducts a procurement procedure based on Article 5(4) for the selection of that third entity. The application of exception pursuant to paragraph 1 shall only be subject to the abovementioned condition if the procurement of the contracting entity would otherwise require the conduct of a procurement procedure  (This amendment entered into force on 1 January 2017.)

      5. Furthermore, this Act shall not apply

      1. where a joint venture which was established for the pursuing of a public service activity under this Act and whose participants are exclusively contracting entities concludes a public services contract with any of the contracting entities participating in the joint venture in question,
      2. where the contracting entity concludes a contract of contracting entities with a joint venture of which it forms part,

      provided that the joint venture has been set up in order to carry out the activity concerned over a period of at least three years and that the instrument setting up the joint venture stipulates that the contracting entities, which form it, will be part thereof for at least for the same period.

      6. Regarding the application of paragraphs (1)-(5), the contracting entity shall communicate – through the Public Procurement Authority – to the European Commission, at its request, the names of the companies concerned, the nature and value of the contracts involved, and any conditions or proof which may be deemed necessary by the European Commission to establish, if the relationship between the contracting parties complies with the requirements of this Article. 

      13. §

      1. This Act shall not apply to contracts of contracting entities, if, pursuant to the procedure set out in Articles 34 and 35 of Directive 2014/25/EU, the European Commission has established that the public service activity concerned is directly exposed to competition on a market to which access is not restricted or the Commission has not issued any decision thereon within the time limit for decision-making.

      2. The procedure of the European Commission shall be governed by Article 35, Annex IV of Directive 2014/25/EU, as well as Commission Implementing Decision (EU) 2016/1804 of 10 October 2016 on the detailed rules for the application of Articles 34 and 35 of Directive 2014/25/EU of the European Parliament and of the Council on procurement by entities operating in the water, energy, transport and postal services sectors. The initiation of the procedure of the European Commission and the dispatch of the request shall be governedby a separate act of legislation. The Hungarian Competition Authority performs the duties specified in a separate act of legislation, concerning the provision of information on all essential facts related to the performance of a given activity under competitive conditions. (This amendment entered into force on 1 January 2017.)

      Further exceptions applicable to concessions

      14. §

      1, In addition to the cases referred to in Article 9, this Act shall not apply to the award of works or service concessions in the cases referred to in this Article. As regards the purchase of works or service concession by a contracting entity, the exceptions set out in Article 10-13 shall also apply.

      2. In case of works or services concessions, this Act shall not apply to

      1. contracts which are related to an activity pursued by the contracting entity in a non-EU member country, under conditions not involving the physical use of a network or geographical area within the European Union;
      2. the conclusion of contracts which are related to an activity specified in Article 6(1)(a) and Article 6(2).

      3. In case of services concessions, this Act shall not apply

      1. where a service under Article 6(1)(b)-(e) is provided by an economic operator on the basis of an exclusive right pursuant to a law or an authority’s decision which is compatible with the TFEU, with the proviso that the notice specified in a separate act of legislation shall be published concerning the conclusion of the contract, unless the relevant sectoral legislation provides otherwise;
      2. to the conclusion of contracts on public passenger transport services by road and by rail under the Act on Passenger Transport Services;
      3. to the conclusion of contracts on air transport services based on the granting of an operating licence within the meaning of Regulation (EC) No 1008/2008;
      4. to contracts for the organization of lottery services (lottery), which are covered by CPV code 92351100-7, concluded on the basis of an exclusive right pursuant to a law or an authority’s decision which is compatible with the TFEU.

      4. The contracting authority shall notify the European Commission within thirty days, through the Public Procurement Authority, of the establishment of the special or exclusive right under Article 3(a).

      5. The establishment of the special or exclusive right under Article 3(d) shall be published in the Official Journal of the European Union. 

      Public procurement thresholds

      15. §

      1. Thresholds for procurement procedures and concession award procedures:

      1. thresholds specified by European Union acts (hereinafter referred to as ‘EU thresholds’);
      2. thresholds specified by the Act on the Central Budget (hereinafter referred to as ‘national thresholds’).

      2. Thresholds shall be periodically established and published in the Official Journal of the European Union by the European Commission.

      3. National thresholds concerning each subject-matter of public procurement shall be determined annually by the Act on the Central Budget. The EU thresholds, specified by the European Union acts according to paragraph 2, concerning each subject-matter of public procurement shall be included in the respective Act on the Central Budget.

      4. As regards social and other specific services defined in Annex 3, no national threshold for service concessions shall be established and the contracting authority shall only apply this Act in case of service concessions the value of which is equal to or greater than the EU threshold.

      5. At the beginning of each year, the EU thresholds and the national thresholds applicable for each subject-matter of public procurement, as well as the thresholds specified in Article 19(4)(a) shall be published by the Public Procurement Authority on its homepage. For this purpose, the amount of the EU thresholds and the thresholds specified in Article 19(4)(a) expressed in HUF shall be set in compliance with the Communication on the amount of the EU thresholds expressed in national currencies, published by the European Commission in the Official Journal of the European Union. (This amendment entered into force on 1 January 2017.)

      The estimated value of public procurements

      16. §

      1. The estimated value of a public procurement shall be the full consideration requested or offered in general for its subject-matter on the relevant market, at the time of the beginning of the procurement procedure and it is to be calculated net of VAT and taking account of the provisions of Articles 17 to 20. The full consideration shall include the value of the optional part, in the case of an invitation to tender containing an optional part.

      2. The estimated value of the public procurement shall include the fees and other payments (commission) payable by contracting authorities to candidates or tenderers, where contracting authorities shall make such payments to candidates or tenderers.

      3. Where the contracting authority ensures the possibility of dividing the contract into lots, the value of all lots shall be included in the estimated value of the public contract.

      4. If the contracting authority is comprised of separate operational or institutional units (hereinafter referred to as ‘operational unit’), the purchasing need of all the operational units shall be taken into account when establishing the estimated value of the public procurement, which is calculated in the light of the provision set out in Article 19(3), except where a separate operational unit is organised as an independent economic entity and it has the right to determine its own operational budget. In the latter case, the estimated value of the public procurement may be calculated at the level of the operational unit in question.

      5. The Public Procurement Authority shall publish Guidelines concerning the methods for calculating the estimated value and the criteria to be taken into account when selecting the method to be applied. 

      17. §

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

      1. in the case of fixed-term contracts, where the term of the contract is 12 months or less, the consideration for its duration or, where the term of the fixed-term contract exceeds 12 months, the consideration for its duration including the estimated residual value;
      2. in the case of contracts for an indefinite period or where the date of the termination of the contract cannot be indicated precisely at the time of the starting of the procedure, the monthly value multiplied by 48.

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

      1. either the actual consideration of the contract or contracts having the same subject-matters and concluded within the preceding calendar year, adjusted according to the anticipated changes in quantity and value in the following calendar year or
      2. the estimated consideration following the first delivery, over the next 12 months or during the term of the contract(s), if it exceeds 12 months.

      3. In the case of service contracts, where the total price is not stated, the estimated contract value shall be:

      1. in the case of fixed-term contracts with a term of 4 years or less, the contract value for its duration;
      2. in the case of contracts of indefinite duration or with a term of more than 4 years, the monthly consideration multiplied by 48.

      4.  For the purposes of calculating the estimated value of services the following elements shall be taken into account in the case of the following services:

      1. in the case of insurance services: the premium payable and other considerations;
      2. in the case of banking and other financial services: fees, commissions, interest, and other considerations;
      3. in the case of services including design: the fee payable, or the commission and other considerations.

      5. When calculating the estimated value of public works contracts, the total counter value of the works, which form a single functional unit as regards the technical and economic aspects, shall be taken into account. The estimated value of the supplies and services needed for the carrying out of the works and provided by the contracting authority shall also be taken into account for the purpose of calculating the estimated contract value of the works.

      18. §

      1. The estimated value of the framework agreement shall be the estimated highest aggregated value of the contracts to be concluded on the basis of the framework agreement, throughout its duration.

      2. Where the dynamic purchasing system is applied, the estimated value of the public procurement shall be the estimated highest aggregated value of the contracts to be concluded on the basis of the dynamic purchasing system, throughout its duration.

      3. The estimated value of innovation partnerships shall be the highest estimated value of the research and development activities to take place during all stages of the envisaged partnership as well as the highest estimated value of the supplies, services or works to be developed and procured at the end of the envisaged partnership.

      4. For the purpose of calculating the estimated contract value of the design contests the following elements shall be taken into account:

      1. the fees or other payments (commission) and any other consideration payable to candidates, as well as
      2. the estimated value of the services for which a contract shall be concluded with the winner or, based on a recommendation from the jury, with one of the winners (prize winners), within the framework of a negotiated procedure without prior publication under Article 98(5) conducted following the design contest, except where the contracting authority (the sponsor) excluded the conclusion of any such contract in the notice launching the procedure. 
      19. §

      1. The choice of the method used to calculate the estimated value shall not be made with the intention of avoiding the application of this Act.

      2. A procurement shall not be subdivided with the effect of preventing it from falling within the scope of this Act or the provisions on public contracts the value of which is equal to or greater than the EU threshold.

      3. Where a public works contract or a public service contract, which is aimed at the same direct purpose, as well as the procurement of supplies, the intended use of which is the same or similar, is divided into lots and realised through more than one contract, the value of all lots shall be taken into account for the establishment of the estimated value of the public procurement. When determining the existence of the same direct purpose in case of public service contracts the technical and economic-functional integrity of each service shall be taken into consideration.

      4. If the estimated value of the public procurement, which is calculated according to paragraph 3, is equal to or greater than the EU thresholds according to this Act, contrary to the provision set out in paragraph 3, the procedure laid down in Part Three of this Act shall apply to contracts

      1. having an estimated value taken alone less than EUR 80 000 in case of services and supplies and less than EUR 1 000 000 in case of public works, (This amendment entered  into force on 1 January 2017.)
      2. in which the total value of the lots does not exceed 20% of the total estimated value of the public procurement calculated according to paragraph 3.

      5. For the purposes of paragraph 4, the exceptions allowed under Article 111 shall not apply.

      6. Paragraph 2 shall be applied separately to each foreign representation in the case of public contracts for the purchases of foreign representations, separately to each member institution in the case of training centres maintained by the minister responsible for vocational training and adult education, separately to each parliamentary panel and allocation in the case of procurement procedures to be financed from the operational and supply allocation of the parliamentary panels stipulated by law, and separately to the purchases to be realized from the allocation granted to the bodies specified in Article 8(1)(a)-(c) and Article 10(1) of Act CLXIII of 2011 on the Prosecution Service. 

      The estimated value of concessions

      20. §

      (This amendment entered into force on 1 January 2017.)

      1. The estimated value of works or service concessions shall be the total turnover, net of VAT, which is expected by the concessionaire during the contract period, at the time of the starting of the public procurement, and which derives from the works or services and related supplies for which the concession is intended.

      2. In addition to the provisions set out in paragraph 1, consideration must be given to the following factors in particular in the establishment of the estimated value of works or service concessions:

      1. the value of the optional part in the case of an invitation to tender containing an optional part;
      2. revenue from the payment of fees and fines by the users of the works or services other than those collected on behalf of the contracting authority;
      3. payments or any financial advantage in any form whatsoever made by the contracting authority to the concessionaire, including compensation for compliance with a public service obligation and public investment subsidies;
      4. grants or any other financial advantage, in any form, from third parties for the performance of the concession;
      5. revenue from sales of any assets which are part of the concession;
      6. the value of all the supplies and services that are made available by the contracting authorities, provided that they are necessary for executing the concessions;
      7. any prizes or other payments to candidates or tenderers.

      3. When establishing the estimated value of works or service concessions, Article 19(1)-(3) shall be applied accordingly.

      4. The objective method for establishing the estimated value of works or service concessions shall be specified in the procurement documents.

      Applicable procedures

      21. §

      1. Part Two shall apply for procurement procedures with a value equalling or exceeding EU thresholds, while for procurement procedures with a value below EU thresholds but, at the same time, reaching national thresholds, Part Three shall apply, unless otherwise provided by this Act. The contracting authority is legally authorised to conduct the public procurement procedure according to the provisions of Part Two, even if this Act prescribes that Part Three shall be applied to the procurement concerned. (This amendment entered into force on 1 January 2017.)

      2. For the purposes of procurement procedures concerning social and other services specified in Annex 3, excluding concession award procedures, Part Three shall be applied. 

      3. For the purposes of concession award procedures, Part Four shall be applied.

      4. Specific rules, other than those set out in this Act, pertaining to procurement procedures concerning contracts of contracting entities, are set out in a separate act of legislation. This Act shall apply to procurement procedures concerning contracts of contracting entities, save as otherwise provided for in the separate act of legislation. In a procurement procedure which is conducted by a contracting entity under Article 6 for a purpose other than that of performing its public service activity, the general rules set out in this Act shall apply.

      5. The detailed rules pertaining to design contests, which are applicable in particular in the field of town and country planning, architecture and construction or data processing, are laid down in a separate act of legislation.

      6. Contracting authorities under Article 5(3) are subject to Part Three, except where their capacity as contracting authorities may also be established on the basis of Article 5(2). In the latter case, the applicable procedure shall be determined on the basis of paragraph 1. 

      Mixed procurement

      22. §

      1. Contracts which have as their subject-matter two or more types of procurement subject to Article 8(2)-(4), shall be awarded in accordance with the provisions applicable to the type of procurement that characterises the main subject-matter of the contract in question.

      2. For the purposes of paragraph 1, if a public contract consists partly of social and other specific services within the meaning of Annex 3 and partly of other services or a public contract consists partly of services and partly of supplies, the main subject shall be determined on the basis of the value of those respective services or supplies which represent the highest value.

      3. Concessions which have as their subject-matter both works and services or several types of services shall be awarded in accordance with the provisions applicable to the type of concession that characterises the main subject-matter of the contract in question.

      4. For the purposes of paragraph 3, if a service concession consists partly of social and other specific services listed in Annex 3 and partly of other services, the main subject-matter shall be determined on the basis of the value of those respective services which represent the highest value.

      5. In the case of contracts consisting partly of a public service activity pursued by the contracting entity and partly of an activity other than the entity’s public service activity, the contracting entity may choose to

      1. award separate contracts for separate elements of the procurement; in this case, the rules applicable to the separate element in question shall be applied respectively to each separate contract, or
      2. to award a single contract; in this case, the rules applicable to the activity which constitutes the primary objective of the contract shall be applied.

      The choice under this paragraph shall not be made with the intention of circumventing the provisions of this Act.

      6. If, in the case provided for in paragraph 5(b), the activity constituting the primary objective of the public contract may not be identified

      1. where one of the elements of the public contract is covered by Part Two or Part Three, while another element of the public contract would be covered by the separate act of legislation according to Article 21(4), the general rules of procedure specified in this Act shall be applied (Part Two or Part Three);
      2. where one of the elements of the public contract is covered by the separate act of legislation according to Article 21(4), while another element of the contract, which is intended for purposes other than the pursuit of the contracting entity’s public service activity, would be covered by Part Four, the contracting entity shall apply the provisions set out in the separate act of legislation according to Article 21(4);
      3. where one of the elements of the public contract is covered by the separate act of legislation according to Article 21(4), while another element of the contract, which is intended for purposes other than the pursuit of the contracting entity’s public service activity, does not fall within the scope of this Act, the contracting entity shall apply the provisions set out in the separate act of legislation according to Article 21(4);
      4. in the case of works or service concessions, where one of the elements of the concession would be covered by the rules applicable to contracting entities, while another element of the concession would be covered by the rules applicable to contracting authorities specified in Article 5(1), i.e. not acting as contracting entities, Part Four shall be applied according to the rules pertaining to contracting authorities specified in Article 5(1), i.e. not acting as contracting entities;
      5. where one of the elements of the public contract, which is intended for the pursuit of the contracting entity’s public service activity, would be covered by Part Four, while another element of the public contract, which is intended for purposes other than the pursuit of the contracting entity’s public service activity, would be covered by Part Two or Part Three, the general rules of procedure specified in this Act shall be applied (Part Two or Part Three);
      6. where one of the elements of the public contract, which is intended for the pursuit of the contracting entity’s public service activity, would be covered by Part Four, while another element of the public contract, which is intended for purposes other than the pursuit of the contracting entity’s public service activity, does not fall within the scope of this Act, Part Four shall apply.

      7. For the purposes of Articles 22-24, the term ‘procurement procedure’ shall not include concession award procedures. 

      23. §

      1. This Article shall apply where, in addition to the cases referred to in Article 22, the different elements of a public contract are subject to different legislations, either because different provisions shall apply on the basis of this Act or because the public contract is partially not covered by this Act. In the case of contracting entities, the provisions set out in this Article shall apply, where all the elements of the public contracts, which are subject to different legislations, are intended for the pursuit of the contracting entity’s public service activity.

      2. Where the different elements of a given contract are objectively not separable and they are necessarily the subject-matter of a single contract, the rules applicable to the conclusion of the contract shall be determined according to the main subject-matter of the public contract.

      3. For the purposes of paragraph 2, in the case of contracts including elements of service concession as well as public supply, the main subject-matter of the public contract shall be determined on the basis of the estimated value of those respective services or supplies which represent the highest value.

      4. Where the different elements of a given public procurement are objectively separable and the contracting authority concludes separate contracts for each element of the public procurement, the conclusion of each contract is subject to the rules concerning the subject-matter of the given contract.

      5. Where the different elements of a given public procurement are objectively separable and the contracting authority chooses to award a single contract, the rules to be applied shall be determined on the basis of paragraphs (6)-(8).

      6. Where the contract contains elements of a public contract and that of a contract which constitutes an exception to the application of this Act, the conclusion of the contract shall be subject to the rules on procurement procedures, irrespective of the proportion that the value of the contract elements excluded from the scope of this Act represents in the total value of the whole contract.

      7. Where the contract contains the elements of a public contract as well as that of a works or service concession, a procurement procedure shall be conducted for the conclusion of the contract, if the value of the element of the contract concerning the public procurement in itself reaches the relevant threshold.

      8. Where the contract contains elements of a works or service concession and that of a contract which constitutes an exception to the application of this Act, the conclusion of the contract shall be subject to the rules on concession award procedures, irrespective of the proportion that the value of the contract elements excluded from the scope of this Act represents in the total value of the whole contract. 

      24. §

      1. Notwithstanding the provisions set out in Article 22(5) and Article 23, this Act shall apply where the public contract consists of elements which are covered by this Act and elements which do not fall within the scope of this Act according to Article 9(1)(a) or (ba).

      2. Where the different elements of a given public contract are objectively not separable and they are necessarily the subject-matter of a single contract,

      1. this Act shall not apply to the conclusion of the contract, if any element of the contract qualifies for the exemption laid down in Article 9(1)(ba) and the exemption specified in Article 9(1)(b) is available;
      2.  if any element of the contract is subject to Article 9(1)(a) and the case specified in point (a) does not occur, the Act on Defence and Security related Procurements shall apply.

      3. Where the different elements of a given public procurement are objectively separable and the contracting authority concludes separate contracts for each element of the public procurement, the conclusion of each contract is subject to the rules concerning the subject-matter of the given contract.

      4. Where the different elements of a given public procurement are objectively separable and the contracting authority chooses to award a single contract

      1. this Act shall not apply, if any element of the contract qualifies for the exemption laid down in Article 9(1)(ba) and the exemption specified in Article 9(1)(b) is available, on condition that there is an objective reason for executing the public procurement by the conclusion of a single contract;
      2.  if any element of the contract is subject to Article 9(1)(a) and the case specified in point (a) does not occur, the Act on Defence and Security related Procurements shall apply, on condition that there is an objective reason for executing the public procurement by the conclusion of a single contract.

      5. The decision of the contracting authority on the conclusion of a single contract shall not be made with the intention of circumventing the provisions of this Act or the Act on Defence and Security related Procurements.