Közbeszerzési Hatóság

Chapter V - Publication, Communication, the Public Nature of Procurement Procedures (37-48. §)

Publication

37. §

1. The following documents shall be published by the contracting authority:

  1. the prior information notice;
  2. the contract notice launching the open procedure;
  3. the invitation to participate starting restricted procedures, negotiated procedures, competitive dialogues and innovation partnerships, except for the direct invitation to participate starting restricted and negotiated procedures launched by a prior information notice or a periodic indicative notice specified by a separate act of legislation, furthermore, the direct invitation to participate starting restricted procedures, negotiated procedures, competitive dialogues and innovation partnerships launched by a pre-qualification notice pursuant to a separate act of legislation;
  4. the invitation launching a procedure subject to independent procedural rules according to Article 117;
  5. the periodic indicative notice and pre-qualification notice specified in a separate act of legislation;
  6. the contest notice launching a design contest;
  7. the concession notice, except for the procedure specified in Article 128 and 129(2);
  8. the notice on the results of the procedure;
  9. the notice on the results of the design contest;
  10. the information notice concerning an amendment to the contract.

2. The notice on the results of the procedure pursuant to paragraph 1(h)-(i) shall be sent for publication by the contracting authority not later than ten business days after the conclusion of the contract or, failing this, the decision of the contracting authority declaring the procedure unsuccessful or refusing the conclusion of the contract [Article 131(9)]. The procurement procedure shall be concluded by the publication of that notice.

3. If the contracting authority does not intend to conclude any further contract within the period specified in the prior information notice, this fact shall be indicated in the notice on the results of the procedure. (This amendment entered into force on 1 January 2017.)

4. Contrary to the provision set out in paragraph 2, in the case of a framework agreement or a dynamic purchasing system, the contracting authority may publish a common notice on the results of the procedure concerning all the contracts concluded based on the framework agreement or in the dynamic purchasing system. In this case, the notice on the contracts awarded in the previous quarter of the year shall be sent for publication within ten business days after the last day of the calendar quarter.

5. The contracting authority shall send for publication the information notice defined in paragraph 1(j) concerning an amendment to the contract not later than fifteen business days after any amendment to the contract.

6. Contracting authorities shall send notices for publication to the Public Procurement Authority by electronic means as specified in a separate act of legislation. Contracting authorities shall publish notices defined in this Act according to a standard form specified in a separate act of legislation. Detailed rules pertaining to the applicable standard forms, the mandatory content elements thereof and the sending and examination of notices, the related fees and their payment and the way of publication of notices shall be laid down in a separate act of legislation. The fee related to the examination of notices is considered as administrative service fee. The Public Procurement Authority shall be obliged to use the fees to cover the costs of its own operation in the sphere of its basic activity. 

38. §

1. After the budgetary year begins, contracting authorities may prepare a prior information notice and contracting entities may prepare a periodic indicative notice specified in a separate act of legislation, concerning the total number of public supply, public works or public service contracts planned by them for the relevant year, or for the subsequent 12 months at the most.

2. In the case of social and other specific services defined in Annex 3, the prior information notice shall include the designation of the services, which constitute the subject-matter of the contracts, the information that no further notice containing an invitation will be published in the procedure and an invitation addressed to economic operators to confirm in writing their intention to participate. In such cases the prior information notice may cover a period exceeding twelve month.

3. Contracting authorities shall publish prior information notices or periodic indicative notices, in a notice drawn up according to the standard form specified in a separate act of legislation.

4. Where the prior information notice or the periodic indicative notice is published on the homepage of the contracting authority, the contracting authority shall be obliged to send the notice called ‘the notice on a buyer profile’ to the Publications Office of the European Union, through the Public Procurement Authority. The prior information notice or the periodic indicative notice may be published on the homepage only after the dispatch of that notice to the Publications Office of the European Union by electronic means.

5. Publication of a prior information notice or a periodic indicative notice shall not entail any obligation to conduct a procedure for the award of a contract included therein. 

39. §

1. The contracting authority shall offer economic operators direct, unrestricted and full access free of charge to the procurement documents by electronic means, except for the request for  registration data. (This amendment entered into force on 1 January 2017.)

2. Where unrestricted and full access free of charge by electronic means may not be provided in the case of certain procurement documents, for any of the following reasons:

  1. the specialised nature of the procurement would require the use of specific electronic means of communication which are not generally available to economic operators,
  2. the contents of the procurement documents may not be displayed using open source applications or applications which are generally available among economic operators or are under a proprietary licensing scheme and the necessary applications or licence cannot be made available by the contracting authority,
  3. the supply of the procurement documents would require specialised office equipment that is not generally available to contracting authorities or
  4. the procurement documents contain business secrets, classified information or any information classified for security or national security reasons, which require such a high level of protection that it cannot be properly ensured by using electronic means of communication that are generally available to economic operators,

the contracting authority shall indicate in the notice launching the procedure how access to the procurement documents will be given to economic operators, possibly by non-electronic means, or what measures will be prescribed in order to preserve the confidential nature of the procurement documents and in what ways can economic operators have access to the documents concerned. 

Communication in procurement procedures

40. §

This Article is to enter into force on 31 December 2017.

41. §

1. All the statements related to the procurement procedure shall be made in writing between the contracting authority and the economic operators, unless otherwise required by this Act.

2. Where this Act does not expressly provide for a specific form of contact keeping, written statements may be made as follows:

  1. by postal delivery or through direct delivery, taking into account the provision set out in paragraph 5;
  2. by fax;
  3. by electronic means.

3. The contracting authority may prescribe the application of a specific form of contact keeping, but it may not prejudice the equal opportunities of economic operators. Tenderers may not be obliged to make their statements exclusively by electronic means, except in procedures conducted by a central purchasing body, as well as the use of dynamic purchasing system, online catalogue or electronic auction.

4. The statement under paragraph 2(c), may be submitted in an electronic document supplied with an advanced electronic signature - unless otherwise provided by this Act or a separate act of legislation based on the empowerment of this Act -, or meeting the requirements specified in a separate act of legislation based on the empowerment of the Act. (This amendment entered into force on 1 January 2017.)

5. For the purposes of the provision or request of information stipulated by this Act, postal delivery may only be used exceptionally, and in justified cases.

6. In procurement procedures, procedural actions may also be carried out electronically. The method of carrying out of the public procurement procedural actions by electronic means is laid down in a separate Government Decree, the provisions of which may be different from the provisions set out in this Act, to the extent as required by the carrying out of procedural actions by electronic means. 

Public nature of procurement procedures

42. §

1. Contracting authorities defined in Article 5(1), with the exception of central purchasing bodies, shall draw up, at the beginning of the budgetary year, by 31 March at the latest, an annual overall public procurement plan (hereinafter referred to as ‘public procurement plan’), which shall outline all public procurements envisaged for the given year. The public procurement plan shall be retained by the contracting authority for a period of at least five years. Public procurement plans shall be made publicly available.

2. Contracting authorities may launch procurement procedures prior to the completion of the public procurement plan; those procedures shall be subsequently included in the public procurement plan, as appropriate.

3. The public procurement plan shall not entail any obligation to carry out the procedures for the award of contracts included therein. Contracting authorities may carry out procedures for the award of contracts not included in the procurement plan or for the award of contracts that have been modified as compared to what the plan contains. In such cases the public procurement plan shall be amended upon the occurrence of such a need or other changes, indicating the justification thereof.

4. Contracting authorities shall, upon request, forward their public procurement plans to the Public Procurement Authority or to the bodies empowered by an act of legislation to exercise control over the contracting authority. 

43. §

1. The contracting authority shall publish the following data, information, documents in the Public Procurement Database maintained by the Public Procurement Authority or, if the publication in the Database is not possible, on its own homepage or on the homepage of the maintaining entity:

  1. the public procurement plan and amendment(s) thereto, without delay upon adoption of the plan or any amendment thereto;
  2. data specified in Article 80(2) concerning preliminary dispute settlement, without delay upon receipt of the request for the preliminary dispute settlement;
  3. the contracts concluded in accordance with Article 9(1)(h)-(i) as well as Article 112(1)-(5), without delay upon conclusion of the contract;
  4. the contracts concluded on the basis of the procurement procedure, without delay upon conclusion of the contract;
  5. the summary concerning the evaluation of requests to participate and the summary concerning the evaluation of tenders, at the same time as they are submitted to the candidates or the tenderers;
  6. the following data concerning the performance of the contract: reference to the notice launching the procurement procedure (in the case of procedures without prior publication of a contract notice, to the invitation), the name of the parties to the contract, the establishment whether the performance was in compliance with the contract, the date of the acknowledgement by the contracting authority of the performance of the contract, the date of the payment of the consideration and the value of the paid consideration, within thirty (30) days following the fulfilment of the contract by each party or, in the case of public procurements carried out using subsidies, in the context of the payment of suppliers, following the fulfilment by the entity which is obliged to make payment;
  7. the annual statistical summary defined in a separate act of legislation, by the time-limit laid down therein.

2. The data defined in paragraph 1 are qualified as data to be published in the public interest and their disclosure may not be prohibited by invoking business secrecy. However, where the tender is annexed to the contract by the parties, the public nature of the tender shall be subject to Article 44.

3. If the public procurement plan defined in paragraph 1(a) is published on the homepage, it shall be accessible until the publication of the public procurement plan regarding the following year on the homepage.

4. The data, information, documents specified in paragraph 1(b) and (f)-(g) shall be accessible on the homepage at least for the period specified in Article 46(2).

5. The contracts specified in paragraph 1(c) and (d) shall be accessible on the homepage for a period of at least five years continuously following the performance of the contract.

6. In the case of contracts concluded for a term over one year or for an indefinite period of time, the information specified in paragraph 1(f) shall be updated annually following the conclusion of the contract. 

44. §

1. Economic operators may prohibit the release of documents containing business secrets (including know-how) [Article 2:47 of the Civil Code], which are included separately in their tender, request to participate, supply of missing information or provision of information, furthermore inthe explanation pursuant to Article 72 of this Act. The documents containing business secrets shall only contain pieces of information that, if made public, would be unreasonably detrimental to the business activities conducted by the economic operator. A justification shall be annexed by the economic operator to the separate document containing business secrets for demonstrating in detail why and how the given pieces of information or data, if made public, would be unreasonably detrimental to the economic operator. The justification given by the economic operator is not satisfactory, if it only offers generalities. (This amendment entered into force on 1 January 2017.)

2. For the purposes of paragraph 1, the following information may not be claimed to be a business secret:

  1. any information, data that can be accessed by everyone on an electronic, official or any other register,
  2. data public on grounds of public interest according to Article 27(3) of the Act CXII of 2011 on the Right of Informational Self-determination and on Freedom of Information,
  3. as regards the certification of suitability, any information and data presented by the tenderer or candidate

    (ca) in relation to the conclusion, contents and execution of former public contracts as well as works or service concessions specified by this Act,

    (cb) in relation to machines, equipment, installations, professionals, certificates, labels,

  4. description of the supplies, works, services specified in the tender, excluding that clearly identified element of the description which fulfils, as demonstrated by the justification given by the tenderer, the conditions set out in paragraph 1,
  5. where requested by the contracting authority, the professional tender of the tenderer, excluding a clearly identified element of the professional tender which fulfils, as demonstrated by the justification given by the tenderer, the conditions set out in paragraph 1 and in case of which there is no obstacle to being considered as business secret according to paragraph 3.

3. Economic operators may not prohibit the public release of their name, address (seat, residence) or any fact, information, solution or data (hereinafter jointly referred to as ‘data’) to be evaluated under the award criteria according to Article 76, but they have the right to prohibit the public release of basic data, partial information not covered by paragraph 2 (such as in particular the priced budget) which serve as the basis of the data mentioned above.

4. If, when declaring the specified information and data to be business secret, the economic operator has failed to comply with paragraph 1-3, the contracting authority shall, in the course of the request for missing information, invite the economic operator concerned to submit a document with the appropriate contents. 

45. §

1. After the dispatch of the summary concerning the evaluation of tenders or requests to participate, the tenderer or candidate participating in the given procedure may ask to have access to those parts of the tender or request to participate of another economic operator, including the supply of missing information, provision of requested information as well as provision of explanation, which do not contain business secrets. The economic operator shall indicate in the request for access to documents the alleged infringement in relation to which the access is requested and those parts of the tender or request to participate which he is asking to have access to. Access to documents shall be provided during office hours, within two days after reception of such request. The contracting authority shall offer access to documents to the extent necessary to ensure enforcement of the right related to the alleged infringement indicated by the economic operator. In the framework of the access to documents, there is no possibility to carry out full examination of the tender or request to participate of another economic operator.

2. On request by a tenderer submitting an admissible tender, after sending the results of the procedure, the contracting authority shall provide specific information regarding the features of the winning tender and its advantages over the tender submitted by him and in the case of negotiated procedures, competitive dialogues and innovation partnerships, regarding the negotiations and the dialogue conducted with the tenderers, within five business days from receiving the request, taking into consideration the winning tenderer’s interests regarding business secrecy. 

The documentation of procurement procedures and the calculation of time limits

46. §

1. Contracting authorities shall arrange for the documentation of each of their procurement procedures, covering the procedures from the preparatory work up to the performance of the contract concluded on the basis of those procedures, in writing or, if the procurement procedure is carried out electronically, by electronic means according to a separate act of legislation based on the empowerment of this Act.

2. Contracting authorities shall retain all documents created in the course of the preparation and conduct of the procurement procedure for a period of at least five years following the closure of the procedure [Article 37(2)] and all documents created in relation to the performance of the contract for a period of at least five years following the performance of the contract. If a procedure has been launched to seek legal remedy in connection with the public procurement, the documents shall be kept until completion of that a procedure, or in the case of a judicial review, until completion of the review, but at least for five years.

3. Contracting authorities shall, upon request, forward the public procurement documents to the Public Procurement Authority or to other bodies empowered by an act of legislation or make the public procurement documents accessible to those bodies by electronic means. 

47. §

1. Where this Act prescribes that minutes shall be drawn up in the course of the procurement procedure, this criterion may also be fulfilled by recording the actions in a public document provided that the actions take place in the presence of a notary public.

2. Where contracting authorities, on the basis of this Act or a separate act of legislation based on the empowerment of this Act, require the submission of a document in the course of the public procurement procedure, the document may be submitted in a simple copy form, unless provided otherwise by an act of legislation. The contracting authority may prescribe the submission of originals or - if it is allowed by the contracting authority - certified copies of such statements that serve directly as the basis of the enforcement of a claim (in particular declaration of guarantyor surety). Where the tender is not submitted electronically, the original copy of the tender submitted pursuant to Article 68(2) shall contain the original, duly signed copy of the statement pursuant to Article 66(2). In the case of documents not submitted in Hungarian, the liable translation produced by the tenderer shall also be accepted by the contracting authority.

3. If the certificate required by this Act is non-existent in the country outside the European Union where the tenderer is established, contracting authorities may accept a certificate or a document that is equal to that certificate. 

48. §

1. For the purposes of the time limits stipulated by this Act, the time limits or periods (hereinafter jointly referred to as ‘time limits’) expressed in days, months or years shall be calculated in such a manner that they do not include the starting date. The starting date shall be the date of the event or other circumstances from which the time limit begins to run.

2. A time limit expressed in months or years shall expire on the day which corresponds to the date following that of the starting date; if the month of expiry does not contain such a date, expiry shall take place on the last day of the month.

3. Where the closing date of the time limit is not a business day, expiry shall take place only on the subsequent business day.

4. Time limits indicated in notices (invitations) shall begin to run on the day following the date of dispatch of the relevant notice (invitation) or on the date of the direct sending of the invitation.

5. Paragraphs 1 to 3 shall also apply to the calculation of the validity period and the period specified in Article 131(6).