Közbeszerzési Hatóság

72. §

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

a)    the cost-efficiency of the manufacturing process, the public works or the provision of services,

b)    the technical solutions chosen,

c)    the exceptionally favourable conditions of performance for the tenderer,

d)    the originality of the goods, works, or services offered by the tenderer,

e)    compliance with the environmental, social and labour requirements specified in Article 73(4) or

f)    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.