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Chapter XI - Requirements Related to Tenders and Candidates (62-65. §)

Grounds for exclusion

62. §

1. The following economic operators shall beexcluded from participating in the procedure as a tenderer, candidate, subcontractor or an organization participating in the certification of suitability:

a)    who or which committed any of the following crimes and this fact has been established by final court ruling over the last five years, as long as he is not relieved from the detrimental consequences attached to prior conviction:

(aa)     participation in a criminal organisation, including crimes committed by participating in a criminal organisation, under the Act IV of 1978 on the Criminal Code (hereinafter referred to as the ‘Act IV of 1978’) and the Act C of 2012 on the Criminal Code (hereinafter referred to as the ‘Criminal Code’);

(ab)    active corruption, abuse of a function, indirect bribery, bribery in international relations, indirect bribery in international relations, misappropriation, defalcation and the crimes of corruption specified in Chapter XXII of the Criminal Code, as well as the misappropriation and defalcation under the Criminal Code;

(ac)     budget fraud under the Act IV of 1978, infringement of the financial interests of the European Communities, budget fraud under the Criminal Code;

(ad)     terrorist offences under the Act IV of 1978 and the Criminal Code, and the incitement, aiding and abetting or attempt connected thereto;

(ae)     money laundering under the Act IV of 1978 and the Criminal Code, as well as terrorist financing under the Criminal Code;

(af)     trafficking in human beings and forced labour under the Act IV of 1978 and the Criminal  Code, as well as forced labour under the Criminal Code,  wich was  in  effect  until the  entering into force of Act V of 2020 on the amendment of certain acts necessary for actions against the exploitation of the victims of human trafficking;

(ag)     agreement in restraint of competition in public procurement and concession procedures under the Act IV of 1978 and the Criminal Code;

(ah)     a crime which is similar to those listed in points (a)-(g), according to personal law of the economic operator;

b)    who or which is in breach of its obligations relating to the payment of their tax, customs duty or social security contribution for more than a year, unless they have paid the debt, including, where applicable, any interest accrued or fines by the time of the submission of the tender or the request to participate, or they were granted a permission for deferred payment of the debt;

c)    who or which is subject of winding-up proceedings, who were subject to the publication of a decree in bankruptcy, the liquidation proceedings launched against whom were legally imposed, or against whom a similar process is in progress according to personal law, or who are in any analogous situation according to personal law;

d)    who or which have suspended business activities or whose business activities have been suspended;

e)    who or which have been convicted by final court ruling of an offence related to their business activities or professional conduct, over the past three years;

f)    whose activity was restricted by final court ruling under Article 5 (2)(b) - or (c) or (g) as appropriate in the given procurement procedure - of the Act CIV of 2001 on Measures Applicable to Legal Entities in Criminal Law, during the period of prohibition; or the tenderer’s activities have been restricted by final court ruling for a similar reason and in a similar manner by another court;

g) 

h)    who or which supplied false data or made false declarations in an earlier procurement procedure or concession award procedure and

ha) if no legal remedy was sought concerning the exclusion, in the view of the contracting authority its reliability in terms of contract performance is reasonably doubtful due to the act on which the exclusion is based for a period of three years after closing the public procurement procedure concerned, or

hb) if legal remedy was sought concerning the exclusion and the decision of the contracting authority on the exclusion, by establishing the provision of false data, was declared lawfull by a decision of the Public Procurement Arbitration Board since becoming final - upon an administrative court action challenging the decision of the Arbitration Board, by the court’s final and binding ruling - issued within the past three years;

i)    who or which, in the course of the fulfilment of the obligation concerning data provision stipulated in the given procedure, provides incorrect data (hereinafter referred to as ‘false data’) or makes a declaration which contains false data or is unable to supply the information required for the fulfilment of the selection criteria, the verification of the absence of the grounds for exclusion or the criteria specified in Article 82(5), despite the declaration he submitted as a preliminary certification in the procurement procedure, if

(ia)     the false data or declaration substantially influences the decision taken by the contracting authority on the exclusion, the suitability, compliance of the tender with the technical specifications or the evaluation of tenders and

(ib)     the economic operator has intentionally supplied false data, made false declaration or acting with due care could have clearly recognised that the data supplied by him are incorrect and the declaration made by him does not comply with the contents of the certifications;

j)    in his case, the contracting authority can prove that he has undertaken to unduly influence the decision making process of the contracting authority in the given procedure or attempted to obtain any confidential information that may confer upon it undue advantages in the procurement procedure or was excluded from an earlier procurement procedure or concession award procedure for the same reason and

ja) if no legal remedy was sought concerning the exclusion, in the view of the contracting authority its reliability in terms of contract performance is reasonably doubtful due to the act on which the exclusion is based, for a period of three years after closing the public procurement procedure concerned, or

jb) if legal remedy was sought concerning the exclusion and the decision of the contracting authority on the exclusion, by establishing the undue influence, was declared lawfull by a decision of the Public Procurement Arbitration Board since becoming final - upon an administrative court action challenging the decision of the Arbitration Board, by the court’s final and binding ruling - issued within the past three years;

k)    who or which are subject to any of the following circumstances:

(ka)     which have their fiscal domicile in a country outside the European Union, the European Economic Area or the Organisation for Economic Cooperation and Development or in a non WTO/GPA country or outside the overseas countries and territories specified in Article 198 of the TFEU or in a country which has not signed any agreement with Hungary on avoiding double taxation or which has not signed a bilateral agreement with the European Union concerning public procurement,

(kb)     companies which cannot identify their actual owner pursuant to Article 3 (38)a)-b) or d) of Act LIII of 2017 on the Prevention and Combating of Money Laundering and Terrorist Financing120 or

(kc)     economic operators in which any legal person or any entity - having legal capacity according to personal law - who is subject to the conditions set out in point (kb) owns directly or indirectly a share exceeding 25% or has the right to vote;

l)    if a third-country national, whose employment is subject to an authorisation in Hungary, committed an infringement of the law established in an administrative ruling which became final in a period of less than two years or, for an administrative procedure for challenging it, by a final court ruling by the employment supervisory authority, pursuant to the act on services and subsidies supporting employment and on the supervision of employment, and was ordered to pay a given amount into the central budget or was ordered by the immigration authority to pay a fine for the protection of public policy pursuant to the Act on the Entry and Stay of Third-Country Nationals;

m)    in his case, the only way to remedy the distortion of competition arising from any conflict of interest under Article 25 or his prior involvement in the preparation of the procurement procedure is to exclude that economic operator from the given procedure;

n)    who or which have committed an infringement of law established in a since final and enforceable decision of the Hungarian Competition Authority, delivered within the previous three years or, in the event of an administrative procedure for challenging the decision of the Hungarian Competition Authority, by a since final and enforceable court ruling according to Article 11 of the CA or Article 101 of the TFEU, and was ordered to pay a fine; or if such infringement of law committed by the tenderer was established finally by another competition authority or lawfully by a court within the previous three years and at the same time the tenderer was ordered to pay a fine;

o)    in his case, the contracting authority can prove that the economic operator has concluded an agreement with another economic operator in the given procurement procedure to distort the competition;

p) 
 
q) 

(1a) Paragraph (1) c) shall be applied with the derogation that the contracting authority may decide not to exclude the economic operator which is in one of the situations pursuant to the exclusion ground, if the contracting authority established that – taking into account the applicable legislation and measures on the continuation of business – the economic operator concerned will be able to perform the contract.
 

(2) Furthermore, the following economic operators are also excluded from  participating  in  the procedure as a tenderer, candidate, subcontractor or an organization participating in the certification of suitability:

a)    its executive officer or a member of its supervisory board, its manager or, in the case of a business organization its sole member or a member,  according to  personal law,  of its similar  management  or supervisory body or a person vested according to personal law with the same powers of decision as the ones mentioned above is a person who was convicted by a final court judgement of a crime specified in paragraph 1 (a) over the last five years, and he has not been relieved from the detrimental consequences attached to such prior conviction or

b)    a person who was convicted by a final court judgement of a crime specified in paragraph 1 (a) over the last five years - or, where such a period is shorter, within the period needed for the person convicted to be relieved from the detrimental consequences attached to the conviction for the given crime - was, in the economic operator concerned, the executive officer or a member of the supervisory board, the manager or, in the case of a business organization, the sole member or a member, according to personal law, of the similar management or supervisory body or a person vested according to personal law with the same powers of decision as the ones mentioned above, when committing the crime in question.

3.    With regard to economic operators with a seat in Hungary the tax payment liability referred to in paragraph 1 (b) shall mean the tax payment liability indicated in the records of the national tax authority and the national customs authority.

4.    Paragraph 1(c) shall not apply, where the contracting authority conducts a negotiated procedure without prior publication on the basis of Article 98 (4)(d).

5.    In the case of tenderers established in another Member State of the European Union and natural persons who are foreign nationals and are subject to the criminal jurisdiction of another country, criminal acts similar to those referred to in paragraph 1 (ah) shall mean

a)    participation in a criminal organisation shall mean the offences relating to participation in a criminal organisation as defined in Article 2 of Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime,

b)    crimes of active corruption, passive corruption, active corruption of public officials, passive corruption of public officials, active corruption in court or regulatory proceedings, passive corruption in court or regulatory proceedings shall mean bribery and corruption as defined in Article 3 of the Convention established by the Council Act of 26 May 1997 drawing up, on the basis of Article K.3(2)(c) of the Treaty on European Union, the Convention on the fight against corruption involving officials of the European Communities or officials of Member States of the European Union,

c)    crimes of budget fraud shall mean fraud as defined in Article 1 of the Convention on the protection of the European Communities' financial interests,

d)    terrorist offences shall mean terrorist offences or offences relating to a terrorist group as defined in Article 1 and 3 of Council Framework Decision of 13 June 2002 on combating terrorism (2002/475/JHA), furthermore, inciting, aiding or abetting, and attempting an offence as defined in Article 4 of that Framework Decision,

e)    crimes of money laundering or terrorist financing shall mean money laundering and terrorist financing as defined in Article 1 of Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing,

f)    trafficking in human beings or forced labour shall mean child labour and any other form of trafficking in human beings as defined in Article 2 of Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA.

5a

6.    In the notice launching the procedure, the contracting authority shall refer to the grounds for exclusion set out in paragraph 1 and 2.

7.    The contracting authority shall inform the Public Procurement Authority of the exclusion specified in paragraph 1(i) and (j) and of the date of the exclusion, indicating the name and address (seat, residence) of the involved tenderer, candidate, subcontractor, organisation participating in the certification of suitability, as well as the subject-matter and the reference number of the procedure, the date of the exclusion and the day on which the excluded economic operator became aware of his exclusion, furthermore, also indicating the act on which the exclusion is based and the description of relevant circumstances of the case.

63. §

1.    The contracting authority may stipulate in the notice launching the procedure that the following economic operators shall be excluded from participating in the procedure as a tenderer, candidate, subcontractor, and shall not contribute to the certification of suitability:

a)    who seriously infringed the requirements of environmental, social and labour law referred to in Article 73 (4) and such infringement was established by a final and binding judicial decision, administrative decision since becoming final or, in case of an administrative procedure for challenging the latter, a final and binding judicial decision issued within the previous three years;

b)    a final and binding judicial decision, an administrative decision since becoming final or, in the case of an administrative procedure for challenging the latter, a final and binding judicial decision delivered within the previous three years established that he had committed, as defined by legislation, a serious breach of professional duty, except for the case specified in point (c), or an act seriously violating professional ethics established in a procedure for breach of the code of ethics conducted by a professional organisation specified in a separate act of legislation;

c)    who have been, over the past three years, in serious breach of their contractual obligations undertaken in a previous procurement procedure or concession award procedure and the breach of contract resulted in the termination or rescission of the aforementioned previous contract, a compensation claim or any other penalty applicable on the basis of the contract, furthermore, where the subsequent impossibility was partly or fully attributable to the wrongful conduct of the party entering into the contract as the successful tenderer;
 
d)    who, in relation to a contract concluded as a result of an earlier procurement procedure or concession award procedure, failed to meet, towards their subcontractor, more than 10% of their payment obligation originating from a final or partial invoice and the breach of contract their payment obligation originating from a final or partial invoice and the breach of contract was established by final court ruling pronounced within the previous three years, although the party entering into the contract as contracting authority paid them in due time.

2.    The contracting authority shall be bound to identify in the notice launching the procedure the grounds for exclusion applied according to paragraph 1.

3.    The period of time specified in paragraph 1, as well as Article 62 (a), (b), (e), (h), (j), (I), (n) and (p), shall always be calculated from the date of verifying the non-existence of the ground for exclusion. The contracting authority shall exclude an economic operator where it turns out that the economic operator is subject to any of the grounds for exclusion to be applied in the procedure. The non-existence of the grounds for exclusion shall be verified by the contracting authority pursuant to  the  provisions  set  out  in this  Act and in a separate act of legislation.
 

Self-cleaning

64. §

1.    Despite the existence of any ground for exclusion other than those referred to in Article 62 (1)(b) and (f), a tenderer, candidate, subcontractor, or an organization contributing to the certification of suitability shall not be excluded from the procurement procedure, if the decision specified in Article 188 (4) of the Public Procurement Authority since becoming final or, in the case of an administrative procedure for challenging the latter, a final judicial decision specified in Article 188 (5) established that measures taken, prior to the submission of the tender or the request to participate, by the economic operator concerned are sufficient to demonstrate its reliability despite the existence of a relevant ground for exclusion.

2.    If the decision specified in Article 188 (4) of the Public Procurement Authority since becoming final or, in the case of an administrative procedure for challenging the latter, a final and binding judicial decision specified in Article 188 (5) established that the economic operator subject to the given ground for exclusion is reliable, the contracting authority shall accept it without any discretion. The final decision shall be submitted by the economic operator at the same time as the European Single Procurement Document.

Suitability criteria

65. §

1.    The contracting authority may make submission of a tender subject to fulfilment of the suitability criteria established by it, in relation to

a)    economic and financial standing;

b)    technical and professional ability;

c)    the enrollment in the register of the country in which the economic operator is established or the permit, licence or membership in a professional organisation or chamber prescribed in his country of establishment, where this is necessary for the performance of the contract.

2.    In exceptional cases duly justified in the procurement documents, the contracting authority shall have the right not to prescribe any suitability criteria related to technical and professional ability, provided that the specific features of the public procurement do not require the prescription of such suitability criteria for the purposes of proper performance. No justification is necessary if due to the legal basis of a negotiated procedure without prior publication only one economic operator can be invited to submit a tender. The suitability criteria shall be accurately indicated in the notice launching the procedure. In doing so, the contracting authority shall specify the existence or non-existence, respectively the degree of insufficiency of the circumstances according to the provisions set out in paragraph 1, which excludethat the contracting authority qualifies the tenderer or the candidate suitable for the performance of the contract. The documents to be submitted for certifying compliance with the suitability criteria shall be specified precisely in the notice launching the procedure or in the other procurement documents, by briefly referring to the type of documents to be submitted in the invitation.

3.    Having regard to the principles of equal opportunity, equal treatment and fair competition, the contracting authority shall confine the establishment of suitability criteria to the subject-matter of the contract and he may prescribe such criteria only to the extent really necessary for the performance of the contract, also taking the estimated contract value into consideration.

4.    The detailed rules pertaining to the ways of certification of suitability and the establishment of suitability criteria shall be set out in a separate act of legislation.

5.    For the purposes of reference works, the establishment of criteria to the extent actually necessary in compliance with paragraph 3, shall mean that the contracting authority requires certification of former supply, works or services up to 75 % of the value - calculated without applying Article 19(3)- of the given public procurement or, in case of quantification, up to 75 % of the quantity or scope of the given public procurement and the subject-matter of such supplies, works or services shall be technically equivalent to the given public procurement. The contracting authority shall precsribe the minimum requirement for turnover data concerning tenderers in such a way that - in case of the examination of the total annual turnover - economic operators , having a total turnover in the financial year or years reviewed by the contracting authority that reached the value - calculated without applying Article 19(3) - of the given public procurement or, in case of the examination of the turnover related to the subject-matter of the procurement, having a turnover related to the subject-matter of the procurement that reached 75 % of the value - calculated without applying Article 19(3) - of the given public procurement contract shall not be qualified unsuitable.

6.    The specified suitability criteria may also be met jointly by joint tenderers or joint candidates. For the purposes of the possibility of joint compliance, criteria which apparently concern each economic operator individually, shall only be met by one of them.

7.    Tenderers or candidates may also meet suitability criteria by relying on the capacity of any other entity or person, regardless of the legal nature of their relation. In such cases, the tender or, in a procedure consisting of more than one stage the request to participate shall identify that entity and, indicating the related point of the notice launching the procedure, the suitability criterion or criteria for the certification of which the tenderer or candidate relies or relies also on the resources of that entity. Except in the case provided for in paragraph 8, the document containing the commitment which is undertaken in a contract, preliminary contract or another form by the entity providing resources and proves that the resources needed for the performance of the contract will be available during the period of implementation of the contract, shall be annexed to the tender or the request to participate.

8.    Under the provisions set out in Article 6:419 of the Civil Code, the entity whose data are used by the tenderer or the candidate for the certification of economic and financial standing shall be liable in the same way as a guarantor for compensating the damage suffered by the contracting authority as a result of nonperformance or non-conformity by the tenderer.

9.    In order to certify the fulfilment of the criteria related to the availability of technicians, their educational and professional qualifications, as well as the reference works which prove the relevant professional experience prescribed by the implementation decree of this Act, economic operators shall only rely on the capacities of other entities if such entity will participate in the performance of the contract or in the performance of the element of the contract requiring the capacities to an extent ensuring that the competence and professional experience – together with the tenderer’s own capacities - required by the suitability criteria is achieved during the performance. The economic operator shall rely on the capacities of another entity in order to certify the fulfilment of the criteria laid down in paragraph 1(c) only if the given entity will perform the task in relation to which it is required to be included in a relevant register, to hold membership in a professional organisation or a permit. The commitment to be annexed according to paragraph 7 shall provide proof thereof. The commitment under paragraph 7 shall prove concerning the entity certifying the fulfilment of the requirement of reference works that such entity is actually involved in the performance, the contracting authority shall monitor during the performance of the contract that the level of involvement complies with the provisions set out herein.

10.    In the case of works contracts, service contracts and siting or installation operations in the context of a supply contract, contracting authorities may require that certain critical tasks be performed directly by the tenderer itself or, in the case of joint tenders, by one of the joint tenderers. In such cases, in relation to those tasks, for the purposes of certification of suitability according to paragraph 9 tenderers or candidates  may not rely on the capacity of another entity and, contrary to the provision set out in paragraph 7, those tasks may not be delegated to a subcontractor in the course of the execution of the contract.

11.    In order to certify his suitability, the economic operator may not rely on data which could be used by him on the basis of succession, without involving the predecessor according to paragraph 7, where the predecessor economic operator is subject to a ground for exclusion applicable in the procedure or, in case of termination of the predecessor, the latter would have been subject to it in the absence of its termination. In such cases, the economic operator may avail himself of the provision set out in Article 64 and shall have the right to rely on data of the predecessor for the certification of suitability, if he demonstrates his reliability in relation to the ground for exclusion that has previously occurred.

12.    The document which another organization hired for the certification of suitability is expected to attach pursuant to paragraph 7 and which comprises commitment, or the tender, for an organization under paragraph 8, or the request to participate, in a procedure consisting of more than one stage, shall include the authorization issued for the tenderer or candidate, stating that it may proceed on behalf of the specific organization in regard to statements made electronically in the EPPS.