Közbeszerzési Hatóság

12. §

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.