Conflicts of interest
1. Contracting authorities shall take all the necessary measures to prevent conflicts of interest and avoid any distortion of competition.
2. Persons or entities on behalf of the contracting authority, - including the procurement service provider and those employed by it - unable to perform their functions in an unbiased and objective manner for whatever reason, in particular due to economic or other interests or any other common interest with an economic operator participating in the procedure, shall not participate in the preparation and the execution of the procedure, for that shall qualify as a conflict of interest.41
3. The following entities may not participate in the procedure as a tenderer, candidate, subcontractor or an organization participating in the certification of suitability, for that is qualified a conflict of interest:
a) persons or organizations involved by the contracting authority in the pursuing of any activity relating to the procedure or to the preparatory work thereof,
b) any organization, if
ba) its executive officer or a member of its supervisory board,
bb) its owner,
bc) a relative living in the same household as the person specified in point ba) and bb) is involved by the contracting authority in the pursuing of any activity relating to the procedure or to the preparatory work thereof, where their involvement in the procedure may have the effect of distorting competition.
4. In addition to the entities specified in paragraph 3, with the exception of public limited companies, an organization may not participate in the procedure as a tenderer, candidate, subcontractor or an organization participating in the certification of suitability, if it is owned by
a) the President of the Republic,
b) the Speaker of the National Assembly or the Deputy Speaker of the National Assembly,
c) the member of the Government,
d) the President of the Curia, the President of the National Judiciary Office,
e) the Prosecutor General,
f) the President of the Constitutional Court,
g) the President of the State Audit Office,
h) the President of the Public Procurement Authority, the President of the Hungarian Competition Authority, the President of the Hungarian National Authority for Data Protection and Freedom of Information, the President of the National Election Office, the President of the Hungarian Central Statistical Office, the Head of the Hungarian Atomic Energy Authority, the President of the Hungarian Intellectual Property Office, the President of the National Tax and Customs Administration of Hungary, the President of the National Research, Development and Innovation Office, the President of the National Media and Infocommunications Authority, the President of the Hungarian Energy and Public Utility Regulatory Authority, or
i) the President of the Hungarian Central Bank,
j) – m)
or by an entity of the relative living in the same household as the persons specified in points a)-i), for that is qualified a conflict of interest.
5. Should the participation in the procurement procedure of a person or organization involved in the preparatory work of the procedure have the effect of creating a conflict of interest pursuant to paragraph 3 and 4, the contracting authority shall be obliged to notify such a person or organization thereof, considering in particular the extra information gathered by it.
6. Persons or organisations acting on behalf of the contracting authority or involved by the contracting authority in the pursuing of any activity relating to the procedure or the preparatory work thereof shall declare in writing specifying whether they are subject to the conflicts of interest set out in this Article.
7. For the purposes of paragraph 3, the participation of any person (organisation) in the procedure
a) from whom or which the contracting authority requested information for the assessment and market survey related to the given public contract or for the assessment of the estimated value of the public contract, without the indication of the starting date of the public procurement, and only advising them of the data necessary for the assessment,
b) who or which participated in the preliminary market consultation [Article 28(4)] held by the contracting authority,
c) from whom or which the contracting authority received a price offer necessary for the submission of the application (claim) for subsidies, does not entail the distortion of competition and does not qualify a conflict of interest, on condition that, in relation to the application of point (a), (b) or (c), those persons (organizations) were not given any information beyond the scope of the data disclosed to all tenderers or candidates by the contracting authority in the course of the procurement procedure.
8. Tenderers or candidates may be excluded from the procedure on the basis of this Article only if equal opportunities may not be guaranteed in any other way for economic operators participating in the procurement procedure. Prior to the exclusion, the contracting authority shall, by a request for supply of missing information or provision of information, ensure that the economic operator concerned is given an opportunity to prove that its participation in the preparation of the procurement procedure does not violate the principles of equal opportunity and fair competition or to prevent the conflict of interest in any other way. The measures taken by the economic operator in order to prevent the conflict of interest shall be indicated by the contracting authority in the summary concerning the evaluation of tenders (requests to participate).
Common provisions pertaining to contracting authorities
1. Contracting authorities, with the exception of those referred to in Article 5(2) and (4), shall notify the Public Procurement Authority of their falling under the scope of this Act and any changes in their data within thirty days following the date from which they come under the scope of this Act or from the date of those changes.
1.a. The contracting authority shall meet its reporting or change reporting obligation under paragraph 1 by registration or data modification in the electronic public procurement system (hereinafter referred to as EPPS).
2. The Public Procurement Authority shall maintain an up-to-date register of contracting authorities in the EPPS, and shall provide further information about the contracting authorities included in the register, as required by the European Commission. If the entity concerned fails to fulfil its obligations of notification as set out in paragraph 1 or, where there is a doubt whether the entity concerned is subject to this Act, the President of the Public Procurement Authority initiates the procedure of the Public Procurement Arbitration Board.
1. Contracting authorities shall be obliged to determine, in accordance with the relevant legislation, the distribution of responsibilities for the preparation, carrying out and internal control of their procurement procedures, as well as the responsibilities of persons and organisations acting on their behalf or involved by them in such procedures and the procedure of documentation applicable to their procurement procedures. In doing so, contracting authorities shall specify in particular the person, persons or bodies responsible for decisions made in the course of the procedure. The group of parties acting on behalf of the contracting authority and the order of exercising the rights concerning the application of the EPPS on behalf of the contracting authority shall be stipulated in the rule on public procurement or during the application of paragraph 2.55
2. Where a contracting authority does not have any general rule on public procurement drawn up according to paragraph (1) or fulfils the criteria that allow derogation from such rules as laid down therein, it shall lay down the requirements set forth in paragraph (1) before the preparatory work for the given procurement procedure at the latest.
3. Persons and organisations acting in the name of a contracting authority or involved in a procurement procedure who or which take part in the preparatory work for the procurement procedure, the preparation of the invitation and the procurement documents, the assessment of tenders or in any other stage of the procedure, shall be required to jointly demonstrate adequate professional competence related to the subject-matter of the public procurement, as well as adequate competence in the field of public procurement, law and finance. The contracting authority shall involve an accredited public procurement consultant in:
a) the public procurement procedure of a value reaching the EU threshold, for public supplies and public services;
b) the public procurement procedure of a value reaching HUF 700 million, for public works; or
c) the public procurement procedure partly or fully funded by EU funds, excluding any purchase which is based on the framework agreement and which fails to reach the value in point a)-b);
d) the purchase which is based on the framework agreement and is of a value stipulated in point a)-b).
3.a. Contrary to paragraph 3, the contracting authority shall not be required to involve an accredited public procurement consultant in direct purchasing orders placed by the contracting authority based on the framework agreement.
4. Contracting authorities shall set up an evaluation committee of at least three members, who jointly have the professional competence pursuant to paragraph 3, for the evaluation and assessment of the tenders according to this Act, taking place following the supply of missing information, the provision of requested information or the provision of explanation [Articles 71-72], where appropriate. The evaluation committee shall put forward in writing an expert’s opinion and a proposal for the decision for the person or body making the decision closing the procurement procedure. The work of the evaluation committee shall be documented by drawing up minutes, which may contain the members’ reasoned evaluation sheets, if applied by the contracting authority.
5. The person taking the decision closing the procurement procedure in the name of the contracting authority may not be a member of the evaluation committee. In the case of a collective decision-making process, persons delegated by the decision-making body in the evaluation committee shall be entitled to have right of consultation. In the case of collective decision-making process, a vote by call-over shall be applied.
The contracting authority, excluding the contracting authority under Article 5(2) and (4), shall accept and process the electronic invoices that comply with European Standard EN 16931-1:2017 and the list of syntaxes attached by the European Commission to this Standard in the Official Journal of the European Union.
Preparation of the procedure
1. The contracting authority shall ensure thorough preparation of the procurement procedure, as regards the subject-matter and the estimated value of the public contract. The procurement documents made available by the contracting authority shall ensure that economic operators are given an opportunity in the procedure to make an offer which is technically suitable, physically executable and economically rational. Contracting authorities shall, even during the preparation of the procurement procedure, seek to ensure conditions necessary for high quality performance, protection of environment – in light of the subject-matter of the public contract - and consideration of sustainability concerns, as well as prevention of amendments to the subject-matter of the public contract. The contracting authority can also use the method of value assessment.
2. The contracting authority, under his responsibility specified in paragraph 1, shall conduct a separate examination aimed at the establishment of the estimated value and the results of the examination shall be documented. In the course of the examination, the contracting authority may use methods based on objectivity. Such methods are in particular
a) inviting the indicative bids concerning the subject-matter of the public procurement,
b) market research concerning the subject-matter of the public procurement, conducted by organizations specialized thereto,
c) involving a forensic expert,
d) tariffs proposed by professional chambers,
e) detailed database of building projects, which is created and maintained by the relevant professional chambers and is based on execution value,
g) analysis of the contracting authority’s former contracts having a similar subject-matter.
3. In the case of public works, the procedure may only be launched, if the plans meeting the requirements set in a separate act of legislation are available. In the cases specified in a separate act of legislation, the contracting authority shall also provide for the control of plans and design architect's and design engineer's site supervision.
4. Before launching the procurement procedure, preliminary market consultations may be held by the contracting authority with independent experts, public authorities and market participants in order to prepare the procurement procedure and to provide economic operators with information on the public procurement planned and the requirements thereof. Contracting authorities shall take all necessary measures, in particular concerning the disclosure of all the relevant information in the procurement documents as well as the establishment of the suitable time limit for the submission of tenders, to ensure compliance with the principles of fair competition, equal opportunities and equal treatment of economic operators.
Joint procurement procedures
1. The contracting authority may authorise other contracting authorities to conduct a procurement procedure on its behalf. However, this authorisation may not result in the avoidance of the rules to be applied to the authorising contracting authority according to this Act.
2. A public contract may be realized jointly by several contracting authorities who may choose and authorise one of them to conduct the procurement procedure.
3. In the cases pursuant to paragraphs 1 and 2, the contract notice launching the procedure shall state that the contracting authority conducts the procedure (also) on behalf of other contracting authority (authorities).
4. For the purposes of paragraphs 1 and 2, if the entire procurement procedure is conducted jointly, on behalf of all the contracting authorities concerned, the contracting authorities shall be jointly responsible for fulfilling their oblligations set out by this Act. If the procurement procedure is not conducted in its entirety on behalf of all the contracting authorities concerned, contracting authorities shalltake joint responsibility only for those elements of the public procurement, which are carried out jointly. Each contracting authority shall have sole responsibility for fulfilling his oblligations set out by this Act with respect to the elements of the procurement procedure carried out on his behalf.60
1. Contracting authorities may jointly award public contracts, conclude framework agreements or operate a dynamic purchasing system with contracting authorities from other Member States of the European Union. However, it shall not be aimed at evading the application of this Act or any other regulation applicable to the contracting authority.61
2. Unless the conditions specified in this Article have been regulated by an international agreement, in the case referred to in paragraph 1, the contracting authority and the contracting authority coming from another Member State shall conclude an agreement that determines:
a) the responsibilities of each contracting authority, and the law applicable to the public contract, as well as
b) the internal organisation of the procurement procedure, including the management of the procedure, the distribution of the works, supplies or services to be procured, and the conclusion of contracts.
3. The information specified in paragraph 2(a) shall be referred to in the procurement documents for jointly awarded public contracts.
4. Unless this Act or a separate act of legislation requires the use of a specific central purchasing body, the contracting authority may employ a central purchasing body located in another Member State. The national provisions of the Member State where the central purchasing body has its registered office shall apply to the implementation of the public procurement, as well as the award of the contract ina dynamic purchasing system or based on a framework agreement.62
5. A contracting authority may set up a joint entity with a contracting authority from another Member State of the European Union in order to award a public contract (public contracts). In this case, the participating contracting authorities shall, by a decision of the main competent body of the joint entity, agree on the applicable national procurement rules of one of the following Member States:
a) the national provisions of the Member State where the joint entity has its registered office; or
b) the national provisions of the Member State where the joint entity is carrying out its activity.
6. The joint entity referred to in paragraph 5 may either be established for an undetermined period, or may be limited to a certain period of time, to certain types of contracts or to one or more individual contract awards, on condition that this is provided for in the joint entity’s instrument of constitution.
Centralised public procurement
1. The Government may order the budgetary authorities under its control or supervision, public foundations established by itself, and economic organisations under state ownership and over which it exercises direct or indirect dominant influence to execute any public procurement within the framework of a centralised procedure and may determine the personal and material scope thereof, the organisations entitled to invite tenders (central purchasing body) and the conditions for participation in such procedures.
2. A centralised procedure shall be used for health-care services of organisations financed by the Health Insurance Fund, in the cases specified by a separate act of legislation. The Government shall be entitled to specify the detailed rules for the procedure, including the personal and material scope thereof and the organisation entitled to invite such tenders (central purchasing body).
3. Centralised procedure shall be used for public procurements related to government communication, organisational development and event organization tasks, in the cases specified by a separate act of legislation. The Government is entitled to determine the detailed rules of the centralised procedure, including the personal and material scope thereof, and the organisation entitled to invite tenders (central purchasing body).
3.a. A centralized procedure shall be used for government IT purchases, in the cases defined in the act of legislation. The government is entitled to define the detailed rules of the centralized purchasing procedure, including its personal and objective scope and the entity entitled to launch a call (central purchasing body).
4. The detailed rules pertaining to centralised public procurement procedures pursuant to this paragraph, if different as required by such procedures from those set out in this Act, shall be determined in a separate act of legislation.
5. The contracting authority and the economic operators shall not be obliged to apply the EPPS in their electronic communication, in the case of conducting the tendering stage in the dynamic purchasing system operated by the central purchasing body or for the application of the electronic catalogue, or when the purchase is carried out, whether with or without reopening the tender, on the basis of the framework agreement concluded by the central purchasing body. However, the central purchasing body or the contracting authority carrying out the purchase shall, even in this case, make publicly available, via the EPPS, or set in the EPPS all the contract notices and data that it is obliged to make publicly available or to enter in the system with regard to the contract, based on this Act or the implementation decree hereof.
1. Public procurements may be implemented in a combined, centralised manner by several contracting authorities, which have created a joint central purchasing body or have designated among themselves a central purchasing body, where Article 31 does not provide for the use of a central purchasing body. Rules pertaining to the cooperation of contracting authorities establishing a centralised procurement system shall be laid down in a cooperation agreement.
2. The central purchasing body shall have responsibility for the functioning of the centralised public procurement system. Contracting authorities using the system are responsible for implementing those elements of the public procurement which are conducted by them, in particular for the procurement in the framework of the dynamic purchasing system operated by the central purchasing body or purchasing on the basis of a framework agreement concluded by the central purchasing body, by reopening or without reopening competition. If the dynamic purchasing system operated by a given central purchasing body may also be used by other public buyers, this shall be indicated in the notice launching the procedure for establishing the dynamic purchasing system.
Reserved Public Contracts
1. Contracting authorities may or, if the Government so provides, shall reserve the right to participate in a public procurement procedure for organizations qualifying as sheltered place of employment, provided 30 % or more of their employees are disadvantaged or disabled workers, furthermore, for developmental employers, provided 30% or more of their employees are involved in developmental employment. Contracting authorities may or, if the Government so provides, shall require that the public contract be performed in the framework of a job creation programme, provided at least 30% of the people employed in the course of the performance of the contract are disadvantaged, disabled or handicapped workers (sheltered employment programmes). Contracting authorities shall refer to this fact in the contract noticelaunching the procedure.
2. In the case of contracts that are reserved according to paragraph 1, contracting authorities shall ensure equal rights, where more than 30% of the employees of an economic operator established within the European Union are disadvantaged, handicapped or disabled workers.
1. Contracting authorities may reserve the right for economic operators to participate in procedures for the award of public contracts exclusively for those health, social and cultural services referred to in Annex 3, which are covered by CPV codes 75121000-0, 75122000-7, 75123000-4, 79622000-0, 79624000-4, 79625000- 1, 80110000-8, 80300000-7, 80420000-4, 80430000-7, 80511000-9, 80520000-5, 80590000-6, from 85000000-9 to 85323000-9, 92500000-6, 92600000-7, 98133000-4, 98133110-8, provided that the economic operators in question fulfil all of the following conditions:
a) their objective is the pursuit of a public service mission linked to the delivery of those health, social and cultural services referred to in this paragraph;
b) they are non-profit-making organizations, in which profits are reinvested with a view to enhance the performance of their public tasks or, where profits are distributed or redistributed, this should be based on participatory considerations;
c) the structures of management or ownership of the organisation ensure the active participation of employees in the management or require the active participation of employees or stakeholders in the pursuit of the public task; and
d) on the basis of this paragraph, they have not been awarded a contract, having a subject-matter subject to this paragraph, by the contracting authority concerned, within the past three years.
2. The contract specified in paragraph 1 shall be limited in time and its maximum duration shall not be longer than three years.
3. The call for competition shall make reference to the reservation of the right of participation in the procurement procedure under this Article.
Common rules pertaining to economic operators
1. Tenders or requests to participate may be submitted by several economic operators jointly.
2. In the case of application of paragraph 1, joint tenderers or candidates shall designate among themselves a representative entitled to act on behalf of the joint tenderers or candidates in the course of the procurement procedure.
2.a. The document including the authorization pursuant to paragraph 2 shall be attached to the tender or the request to participate, in a procedure consisting of more than one stage. The authorization shall state that the economic operator entitled to represent the joint tenderers or candidates may proceed for the individual joint tenderers or candidates to make the various declarations that are to be made electronically in the EPPS.
3. All the statements made on behalf of the group of joint tenderers or candidates shall clearly include the designation of the joint tenderers or candidates.
4. Where this Act stipulates that contracting authorities shall send a notification to tenderers or candidates, furthermore, for the purposes of supply of additional information [Article 56], supply of missing information [Article 71], request of information [Article 71] and request of explanation [Article 72], the contracting authority shall dispatch the information, notification and request addressed to the joint tenderers or joint candidates to the representative defined in paragraph 2.
5. Where the contracting authority prescribes the provision of a tender guarantee [Article 54], the joint tenderers shall provide the guarantee only on one occasion. In the event of the infringement of the validity period of the tender by any joint tenderer [Article 54 (4)], the contracting authority is entitled to receive the tender guarantee.
6. Joint tenderers are jointly liable for the performance of the contract to the contracting authority.
7. Out of the economic operators submitting a joint tender or request to participate after the expiry of the time limit for the submission of tenders or, in the case of a procedure consisting of more than one stage, the expiry of the time limit for participation, upon the departure of any economic operator, the remaining economic operators may participate in the subsequent part of the procedure only if they continue to meet all suitability criteria set in the procedure and the change does not entail the distortion of competition.
8. The contracting authority may not require setting up an economic organisation as a condition for participating in the procurement procedure; however, it may be required from successful tenderer(s), if it is justified for the performance of the contract to be concluded pursuant to a procurement procedure. The notice starting the procurement procedure shall clearly set the requirement of the contracting authority for setting up an economic organisation.
9. If a contracting authority allows or requires the setting up of an economic organisation (project company) for the performance of the contract, the contracting authority shall specify the requirements concerning the business organisation to be set up in the procurement documents; the requirements may only be related to the legal form, the minimal amount of the subscribed capital, defined in proportion to the value of the contract, to the scope of the activity of the business organisation and the control of its activity.
1. In the course of the same procurement procedure or, in the case of a possibility of division of a contract into lots the contract concerning one lot, the tenderer or the candidate
a) may not submit another tender or another request to participate jointly with another tenderer or candidate,
b) may not participate as a subcontractor of another tenderer or candidate,
c) may not certify the suitability of any other tenderer or candidate for the performance of the contract [Article 65(7)].
2. Where a contracting authority experiences an obvious breach of the provisions set out in Article 11 of the Hungarian Competition Act (Act LVII of 1996 on the Prohibition of Unfair and Restrictive Market Practices; hereinafter referred to as: the ‘CA’), as well as the provisions set out in Article 101 of the TFEU or it has a sound reason to assume it in the course of its procedure, the contracting authority shall notify the Hungarian Competition Authority thereof in accordance with the provisions of the CA regarding notification or complaint.
3. Where the minister responsible for public procurements or the minister responsible for the use of EU funds experiences an obvious breach of the provisions set out in Article 11 of the CA or the provisions set out in Article 101 of the TFEU or it has a sound reason to assume it in the course of the legal control of procurement procedures, public contracts, works or service concessions or any amendment thereof, the minister notifies the Hungarian Competition Authority in compliance with the provisions of the CA concerning notification or complaint and, in doing so, he is entitled to transfer any data, which is made available in the course of the control of the procurement procedure, public contract, works or service concession concerned or any amendment thereof, with the exception of qualified data, to the Hungarian Competition Authority.