Közbeszerzési Hatóság

Chapter XIII - The Evaluation of Tenders and Request to Participate (69-74. §)

The evaluation process

69. §

1. In the course of the evaluation of tenders and requests to participate, the contracting authority shall examine whether the tenders and requests to participate are in compliance with the conditions set in the procurement documents and by law.

2. The contracting authority shall determine which tenders or requests to participate are invalid and whether there are any economic operators to be disqualified from the procedure. In the course of the award process, contracting authorities shall accept the European Single Procurement Document (ESPD), consisting of a self-declaration, for the purpose of the preliminary verification of the suitability criteria, the non-existence of the grounds for exclusion and the fulfilment of the criteria laid down in Article 82(5), furthermore, assess conformity of the request to participate and tender in all other aspects, perform the acts of evaluation according to Articles 71-72, as necessary. Together with the self-declaration included in the ESPD, the contracting authority shall verify - in case of procedures consisting of more than one stage in the participation stage - data in the databases which are referred to in the self-declaration and are accessible according to paragraph 11.

3. Tenders which are considered appropriate according to paragraph 2, shall be assessed on the basis of the award criteria.

4. Before taking the decision on the result of the procedure, the contracting authority shall invite the tenderer submitting the most favourable tender based  the award criteria, by setting suitable time limit, to submit the certificates specified in the procurement documentation concerning the non-existence of the grounds for exclusion, the suitability criteria and, where appropriate, the objective criteria according to Article 82(5). The organization whose capacities are used by the tenderer shall only submit the relevant certificates in relation to the suitability criteria. Certificates submitted by the economic operator in his tender, request to participate without the invitation specified in this Article may be disregarded by the contracting authority and it is sufficient for the contracting authority to take such certificates into account prior to deciding on the result of the procedure, only in the evaluation of those tenderers the contracting authority intends to invite to submit the certificates. If the tenderer has already submitted the certificates at an earlier date, instead of inviting the tenderer to resubmit the certificates, the contracting authority shall consider as if they were submitted following its invitation to do so and, if necessary, the contracting authority shall request the supply of missing information or the provision of information. (This amendment entered into force on 1 January 2017.)

5. Where the tenderer specified in Article 4 fails to submit or fails to submit properly, even after the supply of missing information or the provision of information, the relevant certificates (including those cases in which the certificate does not confirm the contents of the self-declaration included in the ESPD or is inconsistent therewith), the contracting authority, without taking account of that tenderer’s tender, invites the tenderer submitting the most favourable tender on the basis of the award criteria to submit the certificates according to paragraph 4. The winning tenderer indicated in the decision closing the procedure shall be a tenderer who has fulfilled its obligation of certification prescribed according to this Act and the provisions set out in a separate act of legislation in relation to the suitability criteria, the non-existence of the grounds for exclusion and the criteria specified in Article 82(5).

6. Before taking the decision closing the procedure, the contracting authority may decide that not only the most favourable tenderer but also a predefined number of tenderers ranked behind the most favourable tenderer will be invited to submit the relevant certificates pursuant to paragraph 4. The second most favourable tenderer may only be designated in the summary, if he was also invited to submit the relevant certificates before the decision closing the procedure was taken by the contracting authority. The contracting authority may only make use of the option provided for in this paragraph, where, taking the evaluation method into consideration, a tender may be disregarded without affecting the ranking of the other tenderers.

7. Where, in the course of the evaluation of requests to participate or tenders, the contracting authority has reasonable doubts about the truthfulness of the self-declaration of any economic operator, it can request at any time that the tenderer or candidate concerned submit the certificates specified in paragraph 4 within five business days.

8. Where the contracting authority makes use of the possibility of setting the range of economic operators to be invited to submit a tender in the participation stage of a procedure consisting of more than one stage, and the number of the requests to participate submitted in the given procedure exceeds the range, the contracting authority shall require the submission of the certificates specified in paragraph 4 in the course of the evaluation of the requests to participate and the results of the participation stage shall be established in the light of those certificates.

9. The obligation of ex-post certification of tenderers or candidates is aimed at providing evidence of compliance with the values taken into account by the contracting authority on the basis of the ESPD in relation to the suitability criteria, the non-existence of the grounds for exclusion and the criteria specified in Article 82(5). Where the values taken into account for the purposes of the suitability criteria, the non-existence of the grounds for exclusion and the criteria specified in Article 82(5) are confirmed, the tender or request to participate shall be deemed valid, even if the submitted certificates deviate from the data indicated in the self-declaration made at an earlier stage. However, the data confirmed by the subsequent submission of certificates cannot change the ranking of candidates to be invited to tender, even if those data exceed the values indicated in the previous self-declaration.

10. The Government determines in a decree the ways of certification that the contracting authority shall accept and the documents that the contracting authority may require for the assessment of the suitability and the verification of the non-existence of the grounds for exclusion.

11. Economic operators shall not be required to submit certificates where and in so far as the contracting authority has the possibility of obtaining the certificates or other relevant information directly by accessing an electronic database in any Member State, which is available free of charge and is indicated by the given Member State in e-Certis as a database suitable for certification. If a register is in a language other than Hungarian the contracting authority may request that the Hungarian translation of the relevant certificate or information be submitted. In Hungary, the official registers and the registers referred to expressly in a separate legislation shall be considered to be suitable for replacing the submission of certificates. The Public Procurement Authority shall make available in e-Certis a complete list of Hungarian databases.

12. As regards the suitability criteria, the economic and professional chamber, in the scope of the activity of its members, may create the list of approved tenderers, regulated in detail by a separate act of legislation. The list of approved tenderers shall be registered with the Public Procurement Authority; the Public Procurement Authority shall verify that the conditions for being included in the list meet the requirements set out in this Act and in a separate act of legislation.

13. The contracting authority shall have the right to request information from other public or local bodies, public authorities or economic operators for the verification of the contents of certificates, statements submitted in the tender or in the request to participate. The entity addressed shall be obliged to provide the contracting authority with the information within three business days.

14. For the purposes of the verification of non-existence of the grounds for exclusion and the assessment of suitability, the contracting authority shall have the right to manage data concerning identity, as well as skills, qualifications, professional experience, current membership in an organisation or public body and a business organisation of the persons designated in the tender or the request to participate. For the purposes of the verification of non-existence of the grounds for exclusion, a certificate attesting clean criminal record may also be requested pursuant to the rules for certification set out in a separate act of legislation. The declaration, specified in a separate act of legislation, to be submitted for the purposes of the verification of non-existence of the grounds for exclusion may also be a declaration made for an economic or professional chamber by its member. 

70. §

1. The contracting authority shall evaluate tenders within the shortest possible time limit. Notwithstanding Article 69, the contracting authority can decide to declare the procedure unsuccessful without evaluating the tenders, if all final price tenders exceed the amount of the financial cover - to be certified according to paragraph 75(4) - available to the contracting authority in the given procedure. If the contracting authority does not evaluate the tenders, the contracting authority cannot choose to launch a negotiated procedure without prior publication of a contract notice under Article 98(2)(a) on the ground that the procedure was unsuccessful. By way of derogation from Article 69, the contracting authority may also decide to declare the procedure unsuccessful without evaluating the tenders, if the procedure is unsuccessful based on Article 75(2)(e). (This amendment entered into force on 1 January 2017.)

2. If the contracting authority cannot complete the evaluation in good time to allow him to notify tenderers of the decision closing the procedure during the validity period of tenders, the contracting authority may request tenderers to maintain their tenders until a date set, but the extension of the validity period of tenders may not exceed sixty days from the original date of expiry of the validity period. If the tenderer does not make any statement within the time limit set by the contracting authority, it shall be considered that the tenderer will maintain its tender until the date set by the contracting authority. If any of the tenderers refuses to maintain his tender, after the expiry of the original validity period of tenders his tender may not be taken into consideration in the course of the procedure, for the purposes of the evaluation.

3. The contracting authority shall be obliged to evaluate the requests to participate as quickly as possible. If the contracting authority cannot complete the evaluation by the date of sending of the invitation to tender, indicated in the request to participate, all candidates shall be notified at the same time of the new date of sending the invitation to tender, which may not be later than sixty days from the original date thereof, and the candidates shall be notified of the results of the participation stage at an earlier date.

Request for the supply of missing information, for the provision of information and correction of calculation errors

71. §

1. The contracting authority shall ensure the possibility of supplying missing information under the same conditions for all tenderers and candidates and it shall request information from the tenderer or candidate for the purpose of clarifying the content of any ambiguous statement, declaration, certificate included in the tender or request to participate.

2. The request for supply of missing information or provision of information shall be sent by the contracting authority directly to the tenderer or candidate, informing about this fact at the same time all the other tenderers or candidates and setting the time limit and, in the case of request for the supply of missing information, specifying the information to be supplied.

3. The supply of missing information shall be restricted to align the tender or the request to participate with the requirements set out in the procurement documents or the relevant legislation. In the course of the supply of missing information the documents, including the documents to be submitted according to Article 69(4)-(5), included in the tender or the request to participate may also be modified or complemented.

4. Where the contracting authority finds that, for the purposes of the certification of suitability, the tenderer or the candidate relies on the capacities of an economic operator or nominated a subcontractor which is subject to a ground for exclusion according to Article 62(1)(a)-(h), (k)-(n), (p)-(q)[1] and, on the basis of his conduct in a previous procedure, (j) or, if required by the contracting authority, Article 63, in addition to the exclusion of the economic operator concerned, the contracting authority shall request, in the framework of supply of missing information, that the tenderer or candidate nominate, if necessary, another economic operator to replace the excluded one. (This amendment entered into force on 1 January 2017.)

5. Throughout the whole time available – specified in the request or notification according to paragraph 2 – for any tenderer or candidate in order to supply missing information, the tenderer or candidate has the right to supply any missing information in relation to which he has not been requested by the contracting authority to supply missing information.

6. If the contracting authority perceives any missing information not mentioned in the previous request(s) for missing information, it shall be obliged to request for another supply of missing information. Where, in the course of the supply of missing information, the tenderer or candidate involves in the procedure an economic operator which was originally not included in the tender or request to participate and this involvement would require another supply of missing information, the contracting authority shall not request that other supply of missing information, on condition that it specified in the notice launching the procedure that, in such cases, it would not prescribe another supply of missing information or would only prescribe another supply of missing information with the restrictions set by itself. The missing information indicated earlier may not be supplied in the course of a subsequent supply of missing information.

7. The request for the provision of information shall be in compliance with the provisions set out in paragraph 1 and 2, furthermore, the scope of the information requested shall be restricted to the information necessary for the evaluation of tenders or requests to participate.

8. The supply of missing information or the provision of information:

  1. may not prejudice the principles set out in Article 2(1)-(3) and (5), furthermore,
  2. in the course of the supply of missing information or the provision of information, in the tender, as regards any document concerning the characteristics of the subject-matter of the procurement, the way of fulfilling the contractual obligations by the tenderer or any other contractual term, only those errors may be corrected, those pieces of missing information may be supplemented, furthermore, in the case of flat rate agreements, only those items and unit prices of the priced budget (detailed bid) may be supplemented, modified, complemented or deleted, which are not significant and concern specific details and whose modification does not affect the total price or a partial amount thereof to be evaluated and the ranking of tenderers to be formed during the evaluation. (This amendment entered into force on 1 January 2017.)

9.

For the purposes of the evaluation under 76(3)(b), in the framework of the supply of missing information, the professionals to be presented at the request of the contracting authority shall only be replaced in the case set out in paragraph 4 and in a way that allows the presentation of a professional who is at least equivalent to the previous one as regards all the relevant circumstances to be taken into account in the course of the evaluation. Even if the person presented in the framework of the supply of missing information is more experienced and more highly qualified than the previous one, the contracting authority shall only take account of the information related to the substituted professional, the supply of missing information is limited to the establishment of validity and shall not result in any change in the factors to be taken into account in the course of the evaluation. In the event of any discrepancy between the data indicated in the reading sheet and those indicated in the document attached to the tender relating to the professional, concerning the data on the professionals to be presented for the evaluation according to Article 76(3)(b),  and if the data indicated in the reading sheet is not confirmed in the course of the provision of information or the supply of the missing document concerning the professional, the information confirmed by the document attached to the tender concerning the professional shall be taken into account by the contracting authority in the evaluation, provided that such information is considered less favourable in the evaluation than the data indicated in the reading sheet. All tenderers participating in the procedure shall be notified of such evaluation of the data concerned simultaneously, without delay. If the data indicated in the reading sheet is considered less favourable in the evaluation than those indicated in the document attached to the tender concerning the professional, the data indicated in the reading sheet shall be taken into account by the contracting authority in the evaluation. (This amendment entered into force on 1 January 2017.)

10. The contracting authority shall be obliged to ascertain that the supply of missing information or the request for the provision of information complies with the provisions set out in this paragraph. In the case of non-observance of the provisions of paragraph 3, 8 or 9 or, if the supply of missing information, provision of information was not fulfilled or was fulfilled beyond the time limit set, only the original copy (copies) of the tender or request to participate may be taken into consideration in the course of the evaluation.

11. If the contracting authority perceives in the tender a calculation error affecting the result of the evaluation, this error shall be corrected by the contracting authority by calculating the aggregate price based on the itemised value (core data) of the elements of the subject-matter of the contract, or by calculating another data based on a calculation included in the tender. All tenderers shall be advised forthwith in writing of the correction of the calculation error simultaneously, directly and without delay. 

Abnormally low price and other disproportionate commitments

72. §

1. If as regards the price or cost which was taken into consideration as an award criterion or any element thereof to be evaluated individually a tender contains an amount appearing to be abnormally low in light of the subject-matter of the contract to be concluded, the contracting authority shall request in writing the basic data determining the contents of the tender elements that are relevant for the assessment as well as an explanation, and shall notify the other tenderers of such request at the same time in writing.

The contracting authority may take into consideration objective explanations relating in particular to

  1. the cost-efficiency of the manufacturing process, the public works or the provision of services,
  2. the technical solutions chosen,
  3. the exceptionally favourable conditions of performance for the tenderer,
  4. the originality of the goods, works, or services offered by the tenderer,
  5. compliance with the environmental, social and labour requirements specified in Article 73(4) or
  6. the possibilities that the tenderer possesses for obtaining state aid.

3. If there is doubt as to acceptability of the explanation, the contracting authority shall have the right to request supplementary explanation from the tenderer, notifying at the same time all the other tenderers, with the aim of assessing whether or not the explanation is acceptable. It is incumbent upon the tenderer to make all facts, data, calculation concerning the well-founded nature of the consideration available to the contracting authority so as to make it possible for the contracting authority to decide, after due deliberation, whether the consideration is well-founded. The contracting authority shall declare the tender invalid, if the information supplied do not properly confirm that the contract may be executed at the given price or cost.

4. In particular, the explanation may not be considered as proper, if it is established that the tender contains an abnormally low price or cost due to the fact that it does not comply with the environmental, social and labour requirements specified in Article 73(4).  For the purposes of the consideration of the well-founded nature of the tender, the contracting authority may request information from the tenderer about the standard wages applicable in the given sector.

5. With the aim of comparing offers, the contracting authority may request data founding specific tender elements from the other tenderers as well, where it is necessary for the decision-making on the well-founded nature of the tender price.

6. The contracting authority may only declare a tender invalid for being abnormally low owing to state aid, only if they had previously requested information in this respect from the tenderer in writing, and the tenderer was unable to prove that it obtained the relevant state aid legally. The contracting authority shall inform the European Commission, through the Public Procurement Authority, about the tenders deemed invalid for that reason.

7. The procedural rules set out in paragraphs 1-6 shall apply accordingly where any other element of the tender contains an undertaking which is not feasible. In such cases, the contracting authority shall declare the tender invalid, if the information supplied do not confirm properly that the given undertaking is feasible. 

Invalidity of the tender and the request to participate

73. §

1. The tender or the request to participate shall be deemed invalid, if

  1. it is submitted after the expiry of the time-limit to submit tenders or to submit requests to participate;
  2. the tenderer, candidate has been excluded from the procedure;
  3. a subcontractor of the tenderer or candidate or an organization participating in the certification of suitability is excluded from participating in the procedure due to a ground for exclusion specified in Article 62(1)(i) or, as a result of its conduct in the given procedure, point (j).
  4. the tenderer or candidate does not comply with the suitability criteria required for the performance of the contract or has not properly certified compliance with those conditions;
  5. it does not comply in any other way with the conditions stipulated in the contract notice, the invitation to tender or the invitation to participate and the procurement documents and by law, with the exception of formal requirements for tenders and requests to participate set out by the contracting authority;
  6. furthermore,

(fa) an information is classified as a business secret by the tenderer or the candidate in contravention of Article 44(2)-(3) and this situation is not remedied, even after the contracting authority’s request for supply of missing information; or

(fb) the justification pursuant to Article 44(1) is not sufficient, even after the supply of missing information.

2. In addition to the cases set out in paragraph 1, the tender shall be deemed invalid, if the consideration offered is abnormally low or it contains any other unfeasible undertaking [Article 72].

3. In addition to the cases set out in paragraph 1, the request to participate shall be deemed invalid, if the candidate submits a tender.

4. According to paragraph 1(e), the tender shall be deemed invalid, in particular, if it does not comply with the environmental, social and labour requirements laid down by legislation or mandatory collective agreement or the provisions on environmental, social and labour requirements listed in Annex 4. On the basis of the data made available each year by the minister responsible for employment policy, the Public Procurement Authority shall publish on its website information relating to the lowest wages applicable in each sector in Hungary.

5. In the procurement documents, the contracting authority indicates, for information purposes, the name of the organisations from which the tenderer can obtain information on the requirements specified in paragraph 4, which shall be met in the course of the performance. The contracting authority is not obliged to stipulate that special information shall be included in the tender as regards the provision set out in paragraph 4, it shall only verify that the information included in the tender do not run counter to the requirements laid down in paragraph 4.

6. In particular, the tender shall be deemed invalid according to paragraph 1(e), if

  1. it was withdrawn by the tenderer, although the validity period has not yet expired;
  2. the tenderer failed to provide the tender guarantee within the time-limit set by the contracting authority or provided the tender guarantee in a smaller amount than it was prescribed;
  3. in the notice launching the procedure, the contracting authority determined in advance an amount, above which all tenders would be declared invalid in the course of the evaluation, and the price or cost included in the given tender exceeds that amount. 
74. §

1. The contracting authority must exclude from the procedure the tenderers, candidates, subcontractors, or entities contributing to the certification of suitability

  1. who are subject to the grounds for exclusion (Articles 62 and, where the contracting authority provided for it, Article 63);
  2. on whose side any ground for exclusion arose in the course of the procedure.

2. The contracting authority may exclude from the procedure

  1. the tenderers or candidates who are not eligible for national treatment [Article 2(5)],
  2. the tenderers who offer a product not eligible for national treatment due to its place of origin [Article 2(5)].

3. The place of origin of products shall be established on the basis of the rules stipulated in a separate act of legislation or in Regulation (EU) No 952/2013 of the European Parliament and the Council of 9 October 2013 laying down the Union Customs Code[1].  


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