Közbeszerzési Hatóság

Chapter XIV - The Result of the Procurement Procedure (75-80. §)

Declaring the procurement procedure unsuccessful

75. §

1. The procedure shall be deemed unsuccessful, if

  1. no tenders or, in the case of a procedure consisting of more than one stage, no requests to participate have been submitted;
  2. only invalid tenders or requests to participate have been submitted;
  3. the validity period has expired for all submitted tenders and neither of the tenderers maintain their tender;

2. The contracting authority shall have the right to declare the procedure unsuccessful

  1. due to its becoming incapable to conclude the contract or deliver thereunder or the contract should be rescinded or terminated [Article 53(4)-(6)];
  2. where the financial cover available to the contracting authority, to be certified according to paragraph 4, is not sufficient to conclude the contract with the tenderer who submitted the most favourable tender on the basis of the award process;
  3. due to an act committed by a tenderer or candidate which is severely damaging to the fairness of the procedure or the interests of the other tenderers or candidates;
  4. where the Public Procurement Arbitration Board annuls a decision made by the contracting authority, and the contracting authority decides to conduct a new procurement procedure or to relinquish its intention to conduct such procedure, but the procedure may not be declared invalid by the contracting authority, if the lawfulness of the procedure may be restored by making a lawful decision after having the decision closing the unlawful procedure annulled.
  5. there has not been submitted at least two tenders (proposals for solution) by the expiry of the time limit for submission of tenders in a single-stage procedure – except in case of negotiated procedures without prior publication - or in the tendering (dialogue) stage of a multi-stage procedure, or there has not been submitted at least two requests to participate by the expiry of the time limit for requests to participate in the participation stage of a multi-stage procedure; (This point entered into force on 1 January 2017.)

  6. a serious infringement occured according to the entity granting subsidy for the public procurement or the entity exercising the process-integrated control of the public procurement stipulated by the law and, in accordance with the rules on procurement procedures, the lawfulness of the procedure cannot be restored by the contracting authority. (This point entered into force on 1 January 2017.)

3. Where, in the case set out in paragraph 2(a), the procedure shall be declared unsuccessful because the financial cover, which had originally been available, was fully or partly withdrawn, the contracting authority shall provide information on the amount of the financial cover that had originally been available and shall inform those concerned which organisation, when and why took the decision on the withdrawal or redistribution of that amount.

4. In the case set out in paragraph 2(b), the contracting authority can confirm the amount of the available financial cover with the data recorded in the electronic notice management system (request) at the time of the dispatch of the notice launching the procedure or with the data documented in the procurement procedure and provided to tenderers or candidates prior to the opening of final tenders at the latest, in the case of electronic auctions with the data recorded in the electronic system prior to the commencement of the auction.

5. Where the contracting authority has allowed the subdivision of the contract into lots, only the lot concerned by the reason for invalidity may be declared unsuccessful. If the contracting authority has indicated in the notice launching the procedure that the invalidity of any lot makes him lose interest in the conclusion of the contracts, and also has given an explanation for it therein, he may declare the procedure unsuccessful as regards all lots. 

6. The contracting authority shall specify in the notice launching the procurement procedure whether Article 75(2)(e) applies to the given procedure. Before the expiry of the time limit for submission of tenders or the expiry of the time limit for requests to participate, the minister responsible for public procurement has the right to require that Article 75(2)(e) be applied on a mandatory basis by the contracting authorities specified in Article 95(1) and, in case of subsidised procurements which shall be controlled pursuant to the law by the minister responsible for public procurement, by any other contracting authority in such a way as to allow the contracting authority concerned a sufficient period of time to take the necessary measures. In such cases the contracting authority shall modify the notice launching the procedure by indicating the reason for invalidity specified in Article 75(2)(e). (This paragraph entered into force on 1 January 2017.)

Selection of the winning tenderer

76. §

1. In the notice launching the procedure, the contracting authority shall specify the criterion or criteria on the basis of which he shall select the tender that he considers to be the most economically advantageous tender, also as regards social, societal and environmental issues, where appropriate (hereinafter referred to as ‘award criteria’).

2. Award criteria may be

  1. the lowest price,
  2. the lowest cost to be calculated using the cost-efficiency method determined by the contracting authority or
  3. criteria representing the best price-quality ratio, in particular qualitative, environmental, social criteria, which include price or cost.

3. Criteria representing the best price-quality ratio, in particular, relate to

  1. quality, technical merit, aesthetic and functional characteristics, accessibility for all users, employment of disabled workers and other social, environmental and innovative characteristics, distribution arrangements, after-sale service and technical assistance, supply of spare parts, securing stocks, delivery date or period;
  2. the organisation, qualification and experience of the staff participating in the performance of the contract, where the quality of the staff may significantly affect the quality of the performance of the contract.

4. The criteria representing the best price-quality ratio may also be applied by indicating the element of price or cost at a fixed value and the tenderers compete with each other on the other award criteria.

5. Contracting authorities shall be bound to apply the award criteria for the lowest cost or the bestprice-quality ratio. Where the contracting authority’s needs can only be met by a particular supply or service which is able to satisfy specifically identified qualitative and technical requirements and, in the particular case, the most economically advantageous tender may be selected on the basis of the award criteria for the lowest price, while further quality characteristics would not help select such tender, the contract may be awarded on the sole basis of the award criteria for the lowest price. The contract may not be awarded on the sole basis of the award criteria for the lowest price in case of design, engineering and architectural services or public works. A separate act of legislation based on the empowerment of this Act or, in case of public contracts carried out using subsidies, the conditions for the subsidies may lay down detailed rules on the award criteria and method to be applied as regards certain subject-matters of public contracts.

6. The award criteria shall meet the following requirements:

  1. they shall be related to the subject-matter of the contract;
  2. the award criteria shall not allow arbitrary decision-making by the contracting authority and shall be based on quantifiable elements or elements that may be evaluated based on professional requirements;
  3. they shall ensure that the principles stipulated in Article 2(1)-(5) are embraced;
  4. within the scope of the award criteria the suitability of the tenderer for the performance of the contract may not be subject to evaluation. When assessing the circumstances specified in paragraph 3(b), where those situations are accompanied by suitability criteria as well, a clear distinction shall be made between the minimum criteria necessary for performance (suitability criteria) and the criteria to be taken into account in the course of the evaluation;
  5. the award criteria shall never allow the same substantial element in a tender being taken into consideration more than once.

7. In line with Article 6(a), the award criteria may be considered to be related to the subject-matter of the contract, if they are related, in any way and at any stage of their life cycles, to the works, supplies or services to be realized on the basis of the given contract, including the factors which

  1. are related to the specific process of production, provision or trading and its conditions of those works, supplies or services; or
  2. are related to a specific process during a later stage of the life cycle of those works, supplies or services;

even where such factors do not form part of the material substance of those works, supplies or services.

8.

In relation to the given process of production or provision of the works, supplies or services, the contracting authority may consider, in particular, the offered degree of employment of unemployed or long-term unemployed people – including the  previous employment in the framework of public employment as defined in the Act on the Amendment of the Act on Public Employment and other Acts relating to Public Employment or in the framework of a similar legal relationship in another Member State of the European Union as nonpublic employee of natural persons -, as well as the implementation of measures aimed at the training of unemployed people within the framework of the given contract. (This amendment entered into force on 1 January 2017.)

9. Where the award criteria for the lowest price or, as determined by the method specified in Article 78, the lowest cost is not the sole award criteria applied by the contracting authority, it shall determine

  1. the award criteria for the lowest costs or the best price-quality ratio as well as the rated multipliers which determine their weight, commensurate with the actual significance of the given award criteria (hereinafter referred to as ’weight‘),
  2. if, within the scope of the award criteria, sub-factors have been specified, the relevant weight of the latter shall be specified commensurate with their actual significance,
  3. the lowest and highest scores - to be the same for all award criteria - for the content elements of tenders when evaluating according to the award criteria,
  4. the method (methods) that shall provide the scores in the range between the limits of the scores [point (c)].

10. The information specified in paragraph 9 shall be indicated in the notice launching the procedure, however, the detailed description of the method (methods) specified in paragraph 9(d) may also be included in other procurement documents. In exceptional cases, where the weighting specified in paragraph 9(a) or (b) is not possible for objective reasons, and this fact is clearly confirmed by the contracting authority in the notice launching the procedure, the contracting authority shall indicate the criteria in decreasing order of importance. In this case Article 77(2) shall not apply, the method used for the award of the contract shall be defined by the contracting authority in the procurement documents.

11. Where the contracting authority applies the lowest cost as sole award criterion and, in this context, he assesses the costs of the supply, service or works using a life- cycle costing approach, paragraphs (9)-(10) notwithstanding, only the specifications set out in Article 78 shall be indicated in the procurement documents.

12. The Public Procurement Authority shall prepare guidelines regarding the methods referred to in paragraph 9(d) and the evaluation of the tenders.

13. The requirements specified by the contracting authority in the procurement documents shall allow the contracting authority to verify the information submitted by the tenderers in order to determine whether and to what extent the tender meets the award criteria. In case of doubt, the contracting authority shall ascertain the relevance of the information submitted by the tenderer.

77. §

1. In relation to the tender elements concerning award criteria (sub-criteria) other than the award criterion or sub-criterion related to price or cost, the contracting authority may specify in the notice launching the procedure the most favourable level of the tender element in question, and he may stipulate that he will give the same score as the highest score to this most favourable level, as well as to the offers going beyond this level. The contracting authority may specify, as regards any of the criteria, a minimum level of requirement which shall be met, compared to which the given tender element cannot be less favourable.

2. Where the award criterion related to the lowest price is not the sole criterion applied by the contracting authority, the contracting authority shall evaluate, using the method determined by it, the tender elements according to the award criteria between the minimum and maximum points specified in the notice launching the procedure, then weigh the scores given to each tender element and aggregate the products of multiplication for each tender. The most favourable tender will have the highest aggregate score. Where the contract is awarded on the sole basis of the award criteria for the lowest cost, and the costs related to the public supply, public service or public works are assessed by using a life-cycle costing approach, the most favourable tender shall be selected on the basis of the method specified in Article 78.

3. After the evaluation of tenders, the contracting authority may launch an electronic auction, if it was indicated previously in the notice launching the procedure.

4. The winning tenderer shall be the one who submitted the most favourable tender according to the award criteria and whose tender shall be deemed valid.

5. The contracting authority shall have the right to establish, in the notice launching the procedure, the objective method or the additional criterion according to Article 76(6)(a)-(d), on the basis of which he selects the most favourable tender, if the total score of several tenders calculated according to paragraph 1 is identical, or the amount of the lowest price or cost, applied as the sole award criterion, is the same in several tenders. Where no such method or criterion had been specified by the contracting authority, the tender which received higher score for the award criterion (having been given a different score) with the largest weight shall be deemed the most advantageous one, while in the case of the award criterion related to the lowest price, the contracting authority shall choose from the lowest tenders on the basis of a drawing held in the presence of a notary public. Moreover, the contracting authority shall have the right to hold a drawing in the presence of a notary public, if the most advantageous tender may not be identified on the basis of the method specified in this paragraph.

78. §

1. Where contracting authorities assess the costs - taken into account in the course of the evaluation - of the supply, service or works using a life-cycle costing approach, they shall refer to it in the notice launching the procedure and shall indicate in the procurement documents the data to be provided by the tenderers and the method which the contracting authority will use to determine the life-cycle costs on the basis of those data.

2. Life-cycle costing shall, to the extent relevant, cover parts or all of the following costs over the life cycle of a product, service or works:

  1. costs, borne by the contracting authority or other users, such as:

    (aa) costs relating to acquisition,

    (ab) costs of use, such as consumption of energy and other resources,

    (ac) maintenance costs,

    (ad) end of life costs (in particular collection and recycling costs),

  2. costs imputed to environmental externalities linked to the product, service or works during its life cycle, provided their monetary value can be determined and verified; such costs may include the cost of emissions of greenhouse gases and of other pollutant emissions and other climate change mitigation costs.

3. The method used for the assessment of costs imputed to environmental externalities shall fulfil all of the following conditions:

  1. it is based on objectively verifiable criteria which ensure compliance with the principles set out in Article 2(1)-(3) and (5), furthermore, which shall not unduly favour or disadvantage certain economic operators;
  2. the method is predetermined, is accessible to all interested parties and is not tailored to one specific procedure, can be used in other procedures as well;
  3. the data required can be provided with reasonable effort by normally diligent economic operators.

4. The Public Procurement Authority shall publish guidelines on the methods for the calculation of life-cycle costs and, where appropriate, it shall indicate that a common method for the calculation of life-cycle costs has been made mandatory by a legislative act of the European Union. In the case of certain subject-matters of procurement, mandatory methods for the calculation of life-cycle costs may be prescribed by a legislative act drawn up on the basis of the empowerment of this Act. 

Communication of the contracting authority‘s decisions

79. §

1. The contracting authority shall inform the tenderer or the candidate in writing of the results of the procedure or the participation stage, the lack of success of the procedure, the classification of their tender or request to participate as invalid, the exclusion of an economic operator as well as of the relevant reasons thereof in detail, as soon as possible after the decision to this effect, but within three business days at the latest.

2. Upon completing the evaluation of the tenders and requests to participate, the contracting authority shall prepare a written summary of the tenders and requests to participate according to the standard forms specified in a separate act of legislation. Upon completing the evaluation of the tenders and requests to participate, the contracting authority shall provide the information pursuant to paragraph 1 by sending the written summary by fax or electronic means to all tenderers, in the case of the end of the participation stage to all candidates, at the same time.

3. The summary shall be sent, upon request, to the European Commission, the Public Procurement Authority, any other organization authorized to control the procurement procedure or the Hungarian Competition Authority. The summary shall be sent to the European Commission via the Minister responsible for public procurements.

4. If the contracting authority observes after the sending of the results that the result (or lack of success) was unlawful and the modification provides legal remedy thereto, the contracting authority may modify on one occasion the written summary, where necessary, retract the communication on invalidity, furthermore, rescind the contract already concluded within twenty days from the dispatch of the written summary to the tenderers, in the case of a written summary concerning the participation stage until the expiry of the time limit to submit tenders or, where the initial situation may not be restored anymore, terminate the contract immediately. If the communication on the invalidity of a request to participate is retracted by the contracting authority in the context of the modification, he can send an invitation to tender to the candidate concerned by setting a new time limit for the submission of tenders. The contracting authority shall dispatch the modified written summary by fax or electronic means to all tenderers at the same time, without delay.

5. Any clerical error (change of names, misspelled names, numeric errors, miscount or any other similar error) detected in the written summary concerning the tenders or the requests to participate may be corrected by the contracting authority at or without request. The contracting authority shall send the corrected written summary to all tenderers or candidates at the same time, not later than ten days after sending the results of the procedure or the participation stage. 

Preliminary dispute settlement

80. §

1. The following entities may initiate the preliminary dispute settlement:

  1. the tenderer or the candidate, within 3 business days after having knowledge of the unlawful event, if it considers that the written summary or any procedural act of the contracting authority or any other document made during the procurement procedure, except for those listed in point (b), is partly or completely unlawful;
  2. any interested economic operator or the chamber or the organization for the representation of interests having an activity related to the subject-matter of procurement (for the purposes of this Article, hereinafter jointly referred to as ‘applicant’)

(ba) not later than ten days before the expiry of the time limit to submit tenders or to participate, in accelerated procedures or negotiated procedures without prior publication of a contract notice until the expiry of these time limits,

(bb) in the prior information notice announcing a restricted procedure or negotiated procedure by the time limit for the indication of interest,

if he considers that the notice launching or announcing the procedure, the procurement documents accessible together with the notice or the modification thereof is partly or completelyunlawful.

2.  The applicant shall state in his application to the contracting authority (hereinafter referred to as ‘preliminary dispute settlement application’) the points of the written summary or other document, or procedural action deemed unlawful, furthermore, his recommendations, remarks, and the data and facts supporting his opinion and he shall also refer to the documents, if any, supporting such data and facts.

3. The preliminary dispute settlement application shall be dispatched to the contracting authority by fax or electronic means, and the contracting authority shall inform the applicant for settlement about its standpoint regarding the application not later than three days after reception of the application by the same means as that of the submission, furthermore, the contracting authority shall inform all tenderers or candidates, known to it, participating in the procedure about the submission of the preliminary dispute settlement application and his answer thereto.

4. Where the infringement committed in the procedure is remediable through those procedural acts, the contracting authority may require – on not more than one occasion, not later than three business days after the reception of the preliminary dispute settlement application – the tenderers or candidates to supply missing information (Article 71), to provide information (Article 71) or an explanation (Article 72), setting a time limit of three business days, even if the procedural rules would not allow to do so. In this case the contracting authority shall inform the applicant for settlement and the tenderers or candidates about the submission of the application for preliminary dispute settlement on the date of dispatch of the request for the supply of missing information or the provision of information or explanation, and he shall inform these entities, by fax or electronic means, about his answer to the application not later than seven business days after reception of the application.

5.  If a tenderer has submitted a preliminary dispute settlement application in connection with a procedural act done, document made following the opening of tenders within the time limit pursuant to paragraph 1 and in compliance with paragraph 2, the contracting authority may not conclude the contract, if division into lots was possible, he shall not conclude the contract on the lot concerned, before the end of a period of ten days from the date of submission of the application, following the date of dispatch of its reply, even if the standstill period would otherwise expire until that date.