Közbeszerzési Hatóság

Chapter XV - Specific Rules Pertaining to Certain Types of Procedure (81-103. §)

Open procedures

81. §

1. The open procedure is a procurement procedure consisting of one stage whereby all interested economic operators may submit a tender.

2. The open procedure shall be launched by a contract notice.

3. For the purposes of the verification of the non-existence of the grounds for exclusion and the certification of suitability, the ESPD shall be submitted by the tenderer together with his tender.

4. In open procedures, the contracting authority may stipulate in the notice launching the procedure that the evaluation of abnormally low price or cost will be carried out following the assessment of tenders. In this case, the contracting authority assesses whether the price or cost is abnormally low and applies, where appropriate, the procedure referred to in Article 72, only as regards the tenderer who submitted the most favourable tender and, if it intends to designate the second most favourable tenderer in the summary, as regards that tenderer as well. If the tender of a tenderer is considered to be invalid due to abnormally low price or cost, he will be replaced by the second most favourable tenderer and the necessary acts of evaluation shall be carried out in accordance with this situation.

5. In open procedures, the contracting authority may stipulate in the notice launching the procedure that the evaluation of tenders will be carried out, on the basis of the self-declaration included in the European Single Procurement Document, following the assessment of tenders. In this case the evaluation will be carried out only as regards the most favourable tenderer or the most favourable tenderer and the following most favourable tenderer or tenderers. The provisions set out in Article 69 shall apply accordingly, with the proviso that it shall be ensured in this case too that, before the decision closing the procedure is taken, the validity of the tender submitted by the winning tenderer designated in the summary,and if the contracting authority intends to designate the second most favourable tenderer in the summary, the validity of his tender as well is fully evaluated by the contracting authority, also as regards the examination of certificates supporting the self-declaration of the tenderer.

6. This paragraph was repealed on 1 January 2017.

7. The time limit for submission of tenders shall be set by the contracting authority in the contract notice at not less than thirty-five days from the date of dispatch of the contract notice. Where the tenders may also be submitted electronically, the time limit for submission of tenders shall be set at not less than thirty days from the date of dispatch of the contract notice.

8. If the contracting authority has dispatched a prior information notice at least thirty-five days, but not earlier than twelve months, before the dispatch of the contract notice, and the prior information notice contained the data to be specified in the information notice according to a separate act of legislation, the time limit for submission of tenders may be shorter than the time limit laid down in paragraph 7, however, it may not be shorter than fifteen days from the date of dispatch of the contract notice.

9. Where, in compliance with Article 39(2), the contracting authority does not offer full direct access by electronic means in the case of certain procurement documents, the time limit for the submission of tenders specified in paragraphs 7 and 8 shall be extended by at least five days.

10. Exceptionally, in duly justified and urgent cases, where the time limits specified in paragraph 7 could not be met, the contracting authority shall have the right to set a shorter time limit to submit tenders than the time limit according to paragraph 7, but it may not be less than fifteen days from the date of dispatch of the contract notice (accelerated procedure). The reason for the use of the accelerated procedure shall be stated in the notice launching the procedure.

11. No negotiation may take place in open procedures. In open procedures, the contracting authority shall be bound by the stipulations of the invitation and the procurement documents, while the tenderer shall be bound by his tender from the date of expiry of the time limit for submission of tenders. In the contract notice, the contracting authority may not set a validity period exceeding thirty, in case of public works, or where the procurement procedure is conducted under a control integrated in a process stipulated by a separate act of legislation, sixty days from its commencement. 

Restricted procedures

82. §

1. The restricted procedure is a procurement procedure consisting of two stages in the first stage of which, that of participation, the contracting authority decides, in line with the provisions set out in Article 69, whether or not the candidates are suitable for the performance of the contract. No offer may be made by the candidate in the participation stage. In the second stage, that of tendering, only those candidates qualified suitable and invited to tender by the contracting authority may submit a tender.

2. The restricted procedure shall start with an invitation to participate and, in the course of the participation stage of the procedure, any interested economic operator shall have the right to submit a request to participate, except in the case provided for in paragraph 3.

3. Sub-central contracting authorities may use a prior information notice as a call for competition in a restricted procedure. In this case the contracting authority shall not publish the invitation to participate, it sends the invitation to participate directly, at the same time to the economic operators who submitted their declaration of interest within the time limit set in the prior information notice and invites them to confirm their interest by submitting their request to participate (hereinafter referred to as ‘direct invitation to participate’). The direct invitation to participate shall be sent within twelve months from the date of publication of the prior information notice.

4. In the invitation to participate or, in the case set out in paragraph 3 in the prior information notice or in the direct invitation to participate, the contracting authority may set the range of the number of tenderers, and state that, in the second stage of the procedure, it will send an invitation to tender only to a number of candidates , selected from the candidates which are suitable and also submitted a valid request to participate falling within the upper limit of that range. The range must include at least five tenderers and shall provide for genuine competition.

5. If the contracting authority sets a range, it shall also define in the invitation to participate or, in the case set out in paragraph 3 in the prior information notice or in the direct invitation to participate, a ranking method in case the number of suitable candidates exceeds the upper limit of the range. The contracting authority shall provide the objective criteria, which are in line with the basic principles laid down in this Act, on the basis of which the tenders are ranked. The contracting authority may indicate which certificates shall be submitted by the economic operators, according to Article 69, regarding compliance with those objective criteria, in order to support the self-declaration included in the ESPD. 

83. §

1. In the restricted procedure, the time limit for participation may not be shorter than a period of thirty days from the day of dispatch of the invitation to participate or the day of sending of the direct invitation to participate.

2. Exceptionally, in duly justified and urgent cases, if the times limits specified in paragraph 1 could not be met, the contracting authority shall have the right to set a shorter time limit for participation than the time limit according to paragraph 1, but it may not be less than fifteen days from the date of dispatch of the invitation to participate or the day of sending of the direct invitation to participate (accelerated procedure). The reason for the use of the accelerated procedure shall be stated in the notice launching the procedure.

3. If the participation stage is successful, the contracting authority shall send not later than five business days after notifying the candidates of the results the invitation to tender, at the same time, to all suitable candidates or, in the case of setting of a range to selected candidates.

4. If the number of the candidates qualified as suitable is lower than the lowest number in the range, the contracting authority shall continue the procedure by inviting to tender the candidates that qualify as suitable. Candidates invited to tender may not submit joint tenders. 

84. §

1. As a minimum, the invitation to tender shall contain the following information:

  1. name and address, telephone and fax number as well as e-mail address of the contracting authority;
  2. reference to the invitation to participate or prior information notice published and the date of publication, the date of sending of the direct invitation to participate;
  3. electronic location where the procurement documents can be accessed; in the case set out in Article 39(2), if those documents were not yet made available otherwise, they shall be annexed to the invitation;
  4. in the tendering stage, in line with the invitation to participate or the direct invitation to participate, reference to the certificates to be submitted according to Article 69 to support the self-declaration included in the ESPD and, if necessary, reference to the declarations and documents to be attached to the tender, which shall prove that neither the tenderer, its subcontractor nor the entity contributing to the certification of suitability is liable to the grounds for exclusion at the time of the tendering stage;
  5. time limit for submission of tenders;
  6. address used for the submission of tenders and the way of submission;
  7. indication whether or not the tender may also be submitted in a language other than the Hungarian;
  8. time and, if it is not made electronically, the place of the opening of tenders as well as the parties authorised to be present at the opening of the tenders;
  9. validity period of the tender;
  10. date of sending the invitation to tender.

2. No negotiation may take place in the restricted procedure. In the restricted procedure, the contracting authority shall be bound by the stipulations of the invitation to participate from the expiry of the time limit to participate and he shall also be bound by the stipulations of the invitation to tender and the procurement documents, while the tenderer shall be bound by his tender from the date of expiry of the time limit for submission of tenders. In the invitation to tender, the contracting authority may not set a validity period exceeding thirty, in case of public works, or where the procurement procedure is conducted under a control integrated in a process stipulated by a separate act of legislation, sixty days from its commencement.

3. Certificates and declarations that had already been attached to the request to participate shall not be attached to the tender, except where the previously submitted certificate or declaration is not adequate anymore for the purposes of certifying as required.

4. In the tendering stage of the restricted procedure, the time limit for submission of tenders shall be determined by the contracting authority as a period not shorter than thirty days from sending the invitation to tender. The time limit for submission of tenders may be determined as a period not shorter than twenty-five days from sending the invitation to tender provided that the tenders may also be submitted by electronic means.

5. In the case of procedures launched by a request to participate, if the contracting authority has dispatched a prior information notice at least thirty-five days, but not earlier than twelve months before the dispatch of the invitation to participate, and the prior information notice contained the data to be specified in the information notice according to a separate act of legislation, the time limit may be shorter than the time limit laid down in paragraph 4. In such cases the time limit for submission of tenders may not be shorter than ten days from the date of dispatch of the invitation to tender.

6. In procedures launched by sub-central contracting authorities the contracting authority and the candidates to be invited to submit tenders may agree on the time limit for the submission of tenders, provided that each candidate is allowed the same period to draw up and submit his tender. If the contracting authority and the candidates, which are considered suitable, are unable to agree on the time limit for the submission of tenders, the time limit shall be determined by the contracting authority, with the proviso that the time limit may not be shorter than ten days from the date of sending of the invitation to tender.

7. Where, in compliance with Article 39(2), the contracting authority does not offer full direct access by electronic means in the case of certain procurement documents, the time limit for the submission of tenders specified in paragraphs 4-6 shall be extended by at least five days.

8. In accelerated procedures, where the time limits specified in paragraph 7 could not be met, the contracting authority may not set a time limit for submission of tenders which is shorter than ten days from the day the invitation to tender is sent. 

Negotiated procedures

85. §

1. The negotiated procedure is a procurement procedure consisting of two stages in the first stage of which, that of participation, the contracting authority shall decide, in line with the provision set out in Article 69, whether or not the candidate is suitable for the performance of the contract. No offer may be made by the candidate in the participation stage. In the second stage, that of tendering, the contracting authority conducts negotiations on the terms of the contract with the suitable candidates invited to submit a tender.

2. Contracting authorities may conduct a negotiated procedure in the following cases:

  1. the needs of the contracting authority may only be satisfied by adjusting, tailoring ready-made solutions which are immediately available on the market;
  2. the subject-matter of the public contract includes design or innovative solutions;
  3. the most favourable tender cannot be selected without prior negotiations because of specific circumstances related to the nature, complexity of the contract, its legal and financial terms;
  4. the technical specifications cannot be established by the contracting authority with sufficient precision in accordance with one of the following references: standards, European Technical Assessment, common technical specifications or technical references; or
  5. the previously conducted open or restricted procedure failed because all the tenders submitted were invalid or the procedure failed on the basis of Article 75(2)(b) because all the tenders submitted exceeded the amount of the financial cover available to the contracting authority. 
86. §

1. The negotiated procedure shall be launched by an invitation to participate, which shall state the grounds for the use of the negotiated procedure. In the participation stage of the procedure, any interested economic operator shall have the right to submit a request to participate, except in the case provided for in paragraph 2.

2. Sub-central contracting authorities may also use a prior information notice as a call for competition in accordance with the rules laid down in Article 82(3).

3. The contracting authority may set the range of the number of tenderers in negotiated procedures as well in accordance with the rules laid down in Article 82(4)-(5), save that the upper limit of that range shall include at least three tenderers.

4. In negotiated procedures Article 83 shall also apply. 

87. §

1. The contracting authority may specify in the procurement documents the elements of the technical specifications and the contract terms which constitute the minimum requirements and may not be subject to negotiation. The description of the subject-matter of public procurement and the contract terms shall be established by the contracting authority with sufficient precision to allow economic operators to identify the subject-matter and the nature of the public procurement, to decide whether or not they intend to submit a request to participate and to have equal opportunities to submit a suitable first tender in the tendering stage.

2. The contents of the invitation to tender shall be subject to Article 84(1), noting that the time limit for submission of tenders shall mean the time limit for submission of the first tender. Furthermore, the invitation to tender shall contain the process of negotiations and the related fundamental rules prescribed by the contracting authority and the date of the first negotiation.

3. The time limit for the submission of the first tender shall be set in accordance with Article 84(4)-(8).

4. In the negotiated procedure, the contracting authority shall be bound by the stipulations of the procurement documents, while the tenderer shall be bound by his tender from the date of conclusion of the negotiations. In the invitation to tender, the contracting authority may not set a validity period exceeding thirty - in case of public works, or where the procurement procedure is conducted under a control integrated in a process stipulated by a separate act of legislation, sixty - days from its commencement (the conclusion of negotiations).

Article 55(6) shall also be applied to tenders.

6. The contracting authority may decide, following the receipt of the first tenders, not to conduct negotiations and to complete the procedure by evaluating and assessing the tenders, if he indicated in the notice launching or announcing the procedure that he reserves the right to do so. In this case the contracting authority shall notify the tenderers of that decision without delay, by fax or by electronic means and the tenderers shall be bound by the validity period from the date of sending of that notification for the duration determined by the contracting authority, in accordance with the maximum durations foreseen in paragraph 4. 

88. §

1. In negotiated procedures, the negotiations between the contracting authority and one or more tenderers aim to award the contract with the most advantageous terms.

2. In the course of the negotiations, the contracting authority shall ensure equal treatment of the tenderers, thus in particular, all information provided by the contracting authority shall be communicated to all tenderers.

3. If the contracting authority negotiates with the tenderers one by one, no information provided by the tenderer about his tender during the negotiation may be communicated to the other tenderers without his permission.

4. The contracting authority shall draw up minutes of each negotiation, the minutes shall be signed by all tenderers that participated in the stage in question not later than by the commencement of the subsequent stage of the negotiation or, in the case of a single stage or the last stage not later than two days after the negotiations ended, and a copy of such minutes shall be handed over or dispatched to them within two business days.

5. The contracting authority shall have the right to stipulate that the negotiations in the tendering stage of the procedure will be conducted by him in several stages and that it will continue the negotiation in the subsequent stage only with those tenderers which submitted the most favourable tender according to the award criteria. In such cases the contracting authority shall already state in the notice launching the procedure that he intends to reduce the number of the tenderers in the course of the negotiation. For the purposes of the submission of final tenders, genuine competition shall be ensured in those cases as well, the number of tenderers to be invited to submit their final tender may not be reduced to one tenderer in the course of the rounds of the negotiation.

6. In the course of the negotiation, the subject-matter and the terms of the public procurement may not be modified in such a way as to

  1. modify the terms set out in the notice announcing or launching the procedure, the invitation to tender and the procurement documents or complement those terms to such an extent that would distort competition or prejudice equal opportunities of economic operators, in particular, where the decision of the interested economic operators concerning their ability to participate in the procurement procedure could have been substantially influenced by their awareness of the new terms or the modifications would make any tenderer incapable to submit a final tender at the end of the negotiations.
  2. change the award criteria or method.
  3. change the minimum requirements established by the contracting authority in accordance with Article 87(1).

7. In the case pursuant to paragraph 5, the contracting authority shall stipulate in advance in the invitation to tender the process of such a multi-round negotiation and the upper limit of the number of tenderers to be selected for the negotiation following the first or the given round. In the course of further negotiations conducted with the tenderers selected in the above manner the tenderers may only submit tenders which are more advantageous to the contracting authority compared to the tenders submitted in earlier rounds.

8. The contracting authority shall notify all tenderers participating at the negotiations of any amendment to the technical specifications or other procurement documents in good time to allow them to modify their tender, prior to the submission of the final tenders or the modified tenders requested from tenderers in the course of the negotiations.

9. The contracting authority shall clearly notify in advance the tenderers of the date of conclusion of the negotiations, if the invitation to tender does not contain any precise information in this respect. As a conclusion of the negotiations, the contracting authority shall invite tenderers to submit a final tender in writing. The contracting authority shall also specify the time limit for submission of final tenders. 

89. §

1. With the exception of the case provided for in Article 87(6), in the course of the negotiated procedure, the tenders are evaluated in several stages by the contracting authority:

  1. As regards the first tender, not entailing a validity period and submitted within the time limit for submission of tenders set in the invitation to tender, the contracting authority shall verify that the first tender is in compliance with the terms set out in the procurement documents. If the tender is invalid due to a reason in relation to which the tender may not be made suitable in the course of the negotiations or the supply of missing information, the tender shall be declared invalid prior to the starting of the negotiations. Before starting the negotiations, the tender may only be declared invalid due to unsuitability of the professional tender, if the professional tender does not comply with the minimum requirements laid down by the contracting authority. Any other missing data, information in relation to the declarations, documents included in the tender shall be supplied until the conclusion of the negotiations.
  2. After the conclusion of the negotiations, the contracting authority shall verify that the final tenders are in compliance with the contents of the procurement documents at the time of the conclusion of the negotiations and with the requirements set out in the relevant legislation, and, where appropriate, he applies Article 72. Any missing data, information in relation to the declarations, documents which should have been supplied until the conclusion of the negotiations on the first tender, may not be supplied subsequently.
  3. The final tenders, which are considered suitable according to point (b) shall be evaluated by the contracting authority on the basis of the award criterion set in the notice launching the procedure and, if the certificates have not been requested in an earlier stage of the procedure, the contracting authority shall proceed pursuant to Article 69(4)-(6). 

Competitive dialogue

90. §

1. The competitive dialogue is a procurement procedure, whereby the contracting authority shall conduct a dialogue with the candidates selected by him in line with the provisions set out in Article 69, with the aim of identifying with precision the subject-matter of the public procurement, the type of and the terms for the relevant contract, and after the dialogue the contracting authority invites the candidates to submit a tender.

2. The competitive dialogue consists of three stages:

  1. participation stage,
  2. dialogue,
  3. tendering stage.

3. The contracting authority may use the competitive dialogue in the cases set out in Article 85(2).

4. The competitive dialogue shall start with an invitation to participate. The invitation to participate shall state the grounds for the use of competitive dialogue. In the participation stage of the procedure, any interested economic operator shall have the right to submit a request to participate. Article 86(3) shall also be applied to competitive dialogues.

5. In the competitive dialogue, the time limit for participation may not be shorter than thirty days from the date of dispatch of the invitation to participate.

6. In the competitive dialogue, the contract shall be awarded on the sole basis of the award criteria for the best price-quality ratio.

7. For the purposes of the subject-matter of the public procurement, the needs and requirements of the contracting authority shall be set out in the invitation to participate and shall be given in detail in the descriptive document. The descriptive document shall contain, in particular, the definition of the subject-matter of the public procurement, the related technical specifications, furthermore, the contract terms, to the extent the contracting authority is capable of doing so, as well as guidelines about the circumstances concerning which the contracting authority requests proposals from tenderers and about the scope or requirements imposed by the contracting authority as regards those circumstances. An indicative time limit for the conclusion and performance of the contract shall also be indicated in the procurement documents. 

91. §

1. If the participation stage is successful, the contracting authority shall, not later than five business days after notifying the candidates of the results, send an invitation to tender at the same time to all candidates qualified as suitable or, in the case of setting of a range, to the selected candidates.

2. Where the number of candidates qualified as suitable is lower than the lowest number in the range, the contracting authority may continue the procedure by inviting the candidates qualified as suitable to conduct a dialogue. The tenderers invited to participate individually in the dialogue may not submit a joint proposal for solution or joint tender.

3. In the dialogue stage of the procedure, the tenderers shall submit proposals for solution, and then, based on those proposals for solution, the contracting authority shall conduct a dialogue with them. 

92. §

1. As a minimum, the invitation to tender shall contain the following elements:

  1. name and address, telephone and fax number as well as e-mail address of the contracting authority;
  2. reference to the invitation to participate published and the date of its publication;
  3. electronic location where the procurement documents can be accessed; in the case set out in Article 39(2), if those documents were not yet made available otherwise, they shall be annexed to the invitation;
  4. deadline for submitting the proposal for solution;
  5. address and way of submitting the proposal for solution;
  6. indication whether or not the proposal for solution may be submitted or the dialogue may be conducted in another language in addition to Hungarian;
  7. place and, if it is not made electronically, time of opening the proposals for solution;
  8. parties authorised to be present at the opening of the proposals for solution, where it is not made electronically;
  9. date of sending the invitation to conduct a dialogue;
  10. procedure of the conduct of the dialogue and the fundamental rules, the date of commencement thereof set by the contracting authority;
  11. where the contracting authority intends to reduce the number of the tenderers in the course of the dialogue, the conduct of the stages of the dialogue and the upper limit of the number of participants to be selected for the dialogue following the given stage;
  12. if the contracting authority intends to give a prize to one or more tenderer(s), the stipulations thereon set out by him;
  13. in line with the invitation to participate, if necessary, reference to the certificates, declarations and documents to be attached to the proposal for solution, which shall prove that neither the tenderer, its subcontractor nor the entity contributing to the certification of suitability is liable to the grounds for exclusion at the time of the conduct of the dialogue.

2. Article 88(5) shall also be applied to competitive dialogues, noting that negotiation shall be read as dialogue and the contracting authority reduces the number of proposals for solution to be discussed.

3. The proposed solution shall contain

  1. the proposal of the tenderer for a single or a multi-variant solution regarding the conditions according to Article 90(7),
  2. the preliminary offer of the tenderer, in the event that the contract is performed according to the technical, legal, or financial criteria proposed by that tenderer, as well as
  3. the indication of the element of the proposed solution which qualifies as a business secret.

4. The rules pertaining to the opening of tenders shall be applied to the submission and opening of proposals for solution and the provisions set out in Article 73(1)(a) and Article 75(1)(a) shall apply correspondingly to the proposals for solution submitted by tenderers as well. 

93. §

1. The dialogue between the contracting authority and one or more tenderer in the competitive dialogue aims at finding the solutions best adapted to satisfy the procurement needs of the contracting authority.

2. During the dialogue the contracting authority shall ensure equal treatment to all tenderers and, in particular, all information provided by the contracting authority shall be communicated to all tenderers.

3. During the dialogue, tenderers shall not be bound by their proposal for solution and the contracting authority shall not be bound by the conditions set by him either, however, in the procedure, neither the subject-matter of the public procurement, nor the conditions set by the procurement documents may be changed to such an extent that it would distort competition or prejudice equal opportunities of economic operators. Neither the award criteria nor the method may be modified in the course of the procedure.

4. In the case set out in Article 92(2), in the course of further dialogue conducted with the participants still being in competition, the tenderers may only propose more favourable solutions for the contracting authority than those proposed in the previous stage. Where a tenderer submits a multi-variant proposal for solution, those shall be considered as independent proposals, and the contracting authority is not bound to invite to a successive stage or stages of the dialogue any specific solution proposed by a tenderer.

5. The contracting authority shall conduct the dialogue with the tenderers one by one, and no information provided by the tenderer may be communicated to the other tenderers without his consent. The tenderer’s consent shall be requested for the intended communication of specific information.

6. Where oral negotiations take place or also take place in the course of the dialogue, the contracting authority shall draw up minutes for each negotiation, which shall be signed by all tenderers who participated in the negotiation in question not later than by the commencement of the subsequent stage of the dialogue, in the case of a single stage or the last stage not later than two days after the dialogue ended, and a copy of such minutes shall be handed over or sent to them within two business days. 

94. §

1. After the conclusion of the dialogues the contracting authority shall invite in writing, at the same time all tenderers who participated in the dialogue, or where appropriate, in the last stage of the dialogue to submit their tender.

2. Where all participants concerned have provided their consent for using their proposal for solution, wholly or partly, during the definition of the requirements for the subject-matter of the procurement and the contracting authority considers it necessary, the contracting authority may use wholly or partly one or more proposals for solution in defining the public procurement technical specifications and the contract terms, for the drawing up of the final tender. In this case new procurement documents shall be made available for the submission of the final tender.

3. Where the conditions according to paragraph 2 do not exist, tenderers shall submit their tenders by finalizing the previous proposal for solution.

4. The invitation to tender shall state the following information:

  1. deadline and the place for submission of tenders,
  2. place and time of opening the tenders,
  3. in the case specified in paragraph 2, the information concerning the accessibility of procurement documents,
  4. validity period of the tender,
  5. in the tendering stage, in compliance with the stipulations of the invitation to participate, reference to the certificates to be submitted according to Article 69 to support the declaration included in the ESPD and, if necessary, reference to the declarations and documents to be attached to the tender, which shall prove that neither the tenderer, its subcontractor nor the entity contributing to the certification of suitability is liable to the grounds for exclusion at the time of the tendering stage.

5. The tenderer shall be bound by the validity period of the tender from the date of expiry of the time limit for submission of tenders. In the invitation to tender, the contracting authority may not set a validity period exceeding thirty - in case of public works, or where the procurement procedure is conducted under a control integrated in a process stipulated by a separate act of legislation, sixty - days from its commencement.

6. In competitive dialogues, the validity period shall be applied to the tenderer, with the proviso that the contracting authority may further clarify, where appropriate, certain non-essential contract terms with the tenderer to be indicated as the winning tenderer. These clarifications shall not distort competition or violate the principle of equal opportunities of economic operators. 

Innovation partnership

95. §

1. The innovation partnership is a special type of procurement procedure which aims at the development of an innovative product, service or works and the subsequent purchase of the resulting supplies, services or works.

2. The innovation partnership consists of two stages:

  1. the conclusion of the innovation partnership agreement or agreements is subject to the procedural rules laid down by this Act (procedural stage) and
  2. the development process and the purchase is subject to the terms and conditions specified in the innovation partnership agreement (contractual stage).
96. §

1. The innovation partnership agreement or, where the contracting authority intends to establish the partnership with several tenderers, agreements shall be subject to the rules on negotiated procedures, with the differences stipulated in this Article.

2. In the procurement documents, in compliance with Article 95(1), the contracting authority shall identify the need for an innovative product, service or works that cannot be met by purchasing products, services or works already available on the market. The procedure may not be launched in a prior information notice and the choice of this type of procedure shall be justified by the contracting authority on the grounds of the novelty (innovative nature) of the subject-matter of the procurement. The contract terms included in the procurement documents shall define in detail the arrangements applicable to intellectual property rights. In the case of public works, it is not necessary to provide economic operators with an unpriced budget or to submit a priced budget in the tender.

3.  The time limit for participation may not be shorter than thirty days from the date of dispatch of the invitation to participate and the possibilities for the reduction of time limits in negotiated procedures are unavailable.

4. The contract shall be awarded on the sole basis of the award criteria for the best price-quality ratio.

5. In the tendering stage of the procedure, Article 75(1) shall not apply. The contracting authority may not exercise the option under Article 87(6).

6. In case of a limitation of the number of candidates to be invited to tender, the contracting authority in the selection of candidates shall in particular apply criteria concerning the candidates’ capacity in the field of research and development and of developing and implementing innovative solutions.

7. The tenders shall include a description of research and development projects aimed at satisfying the needs which may not be met using the existing solutions  defined by the contracting authority. The contracting authority shall determine the remuneration components to be paid to tenderers to which the price shall be given and he shall determine how the price shall be broken down in the tender, furthermore, the contracting authority shall include in the award criteria the predetermined maximum price of the supplies, services or works to be produced as a result of the development.

8. At the end of the procedural stage, the contracting authority shall have the right to conclude partnership agreements with several tenderers. The notice specified in Article 37(1)(h) shall be published concerning the conclusion of the partnership agreement. 

97. §

1. The partnership agreement shall provide for the organisation of the research and innovation process which shall be structured in successive phases and which may include the manufacturing of the products, the provision of the services or the completion of the works. The innovation partnership shall set intermediate targets to be attained by the partner and provide for payment of the remuneration related thereto.

2. The contracting authority may decide after each phase to terminate the innovation partnership or to reduce the number of partners by terminating individual contracts, provided that the contracting authority has indicated in the procurement documents those possibilities and the conditions for their use. The objective criteria to be applied in reducing the number of partners, the number of economic operators from which the contracting authority intends to purchase the supplies, services or works at the end of the process and, where the number of partners was not reduced accordingly in the development process, the objective criteria to be applied by the contracting authority in order to decide from which partner he intends to purchase the supplies, services or works shall be clearly stated in the partnership agreement.

3. In the case of innovation partnerships established with several partners, contracting authorities shall not reveal to the other partners any information communicated by a partner without his consent. Such consent shall be given with reference to the intended communication of specific information.

4. The contracting authority shall ensure that the structure of the partnership, the duration and value of the different phases reflect the degree of innovation of the proposed solution and the sequence of the research and innovation activities required for the development of the solution. The value of supplies, services or works created in the development process shall not be disproportionate in relation to the investment required for their development. 

Negotiated procedures without prior publication of a contract notice

98. §

1. The negotiated procedure without prior publication of a contract notice is a procurement procedure consisting of one stage, in which the contracting authority negotiates the terms of the contract with the tenderers invited to submit a tender.

2. Contracting authorities may conduct a negotiated procedure without prior publication of a contract notice in exceptional cases, where:

  1. the preconditions set out in Article 85(2)(e) are met and the original terms of the public contract have not been altered substantially, furthermore, all tenderers of the open or restricitive procedure whose tender was considered invalid are invited by the contracting authority to the negotiation, on condition that the invalidity is not based on Article 73(1)(b) or (d), and their tender have fulfilled the formal requirements set, where appropriate, after a supply of missing information;
  2. the open, restrictive procedure was unsuccessful because no tender or request to participate was submitted in the procedure or the tenders or requests to participate submitted were substantially unsuitable, provided that the original terms of the public contract have not been altered substantially; the contracting authority shall, upon request, inform the European Commission via the Minister responsible for public procurements. The tender shall be considered substantially unsuitable, if it is invalid on the ground that the professional tender is clearly unable to meet the needs and requirements defined by the contracting authority, unless substantial changes are made to it; the request to participate shall be considered substantially unsuitable, if it is invalid on the basis of Article 73(1)(b) or (d).
  3. for technical reasons or for reasons connected with the protection of exclusive rights, the contract may only be concluded with a particular economic operator, provided that no reasonable alternative or substitute exists to satisfy the purchasing need of the contracting authority and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement;
  4. the contract may only be concluded with a particular economic operator because it is aimed at the creation or acquisition of a unique work of art or artistic performance;
  5. insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseen by the contracting authority, the time limit laid down for the open or restricted procedures cannot be kept; however, the circumstances invoked to justify extreme urgency must not in any event be attributable to the negligence of the contracting authority or be caused by the contracting authority.

2a. Article 2(a) and (b) shall not apply if there was a submitted tender (in case of the participation stage, request to participate) in the procedure and the procedure could have also been declared unsuccessful on the basis of Article 75(2)(e) applied in the given procedure.(This paragraph entered into force on 1 January 2017.)

3. Furthermore, contracting authorities may award public works or public service contracts by negotiated procedure without prior publication of a contract notice in case of new public works or services consisting in the same or similar works or services entrusted to the former winning tenderer to which the same contracting authority awarded an earlier contract. This is subject to the proviso that such new works or services conform to a basic project for which a first contract was awarded in an open or restricted procedure, and the contracting authority indicated in the notice launching or announcing the original procedure that the negotiated procedure might be adopted and also indicated the subject-matter of the further possible works or services and the conditions for their procurement, furthermore, it took into consideration the total estimated value of subsequent works or services (to determine whether it reaches the EU threshold) when determining the estimated value of the works or services in the former procedure. Such negotiated procedure may only be applied during the three years following the conclusion of the original contract.

4. In addition, contracting authorities may award public supply contracts by negotiated procedure without prior publication of a contract notice in the following cases:

  1. where the products involved are manufactured purely for the purpose of research, experiment, study or development; however, this provision does not cover quantity production to establish commercial viability or to recover research and development costs;
  2. where, in the course of a partial replacement or the extension of existing supplies, a change of supplier would oblige the contracting authority to acquire material having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; however, the total length of such contract(s) concluded with the former winning tenderer may not exceed three years;
  3. where the product is listed on and procured from a commodity exchange;
  4. where the supplies are procured with exceptionally favourable terms in the course of a sale in a liquidation procedure, in a closing sale or in the execution of a court warrant or in any similar procedure related to the personal rights of the entity concerned.

5. In addition, contracting authorities may award public service contracts by negotiated procedure without prior publication of a contract notice, where a previous design contest was conducted and the contract must be awarded to the successful candidate or, according to the recommendation of the evaluation committee, to one of the successful or prize winning candidates; in the latter case, all candidates or tenderers recommended by the evaluation committee shall be invited to participate in the negotiations. 

99. §

1. Negotiated procedures without prior publication of a contract notice shall start by sending an invitation to tender, with the exception of the case specified in Article 98(4)(c)-(d), and in the case pursuant to Article 102(2) it shall start by sending an invitation to negotiate. If several tenderers may submit a tender, the invitation to tender or the invitation to negotiate shall be sent to all tenderers at the same time.

2. In the negotiated procedures without prior publication of a contract notice, only those economic operators may submit a tender which were invited to tender. The economic operators invited to tender may not submit a joint tender, however, nothing prevents any economic operator invited to tender from submitting a joint tender with any other economic operator not invited to tender by the contracting authority.

3. Where Article 98(2)(b) and (4)(a) applies to the negotiated procedure and, if it is reasonably possible in a situation resulting in extreme urgency, in the case of application of Article 98(2)(e), the contracting authority shall, as far as possible, send an invitation to tender to at least three tenderers. 

100. §

1. In addition to the contents provided for in Article 50, the invitation to tender shall contain the following elements:

  1. the ground for adopting the negotiated procedure;
  2. the process of negotiations and the related fundamental rules prescribed by the contracting authority;
  3. the date of the first negotiation.

2. Where the contracting authority does not make available separate procurement documents in addition to the invitation, the contracting authority shall include the contract terms, the technical specifications, the unpriced budget in the case of public works, and, where appropriate, the requirements for the business organisation to be set up by the successful tenderers in the invitation for the submission of tenders.

3. In the negotiated procedure without prior publication of a contract notice according to Article 98(5), the contract shall be awarded on the sole basis of the award criteria for the best price-quality ratio.

4. The tenderer shall be bound by his tender from the date of conclusion of the negotiations. In the invitation for the submission of tenders, the contracting authority may not set a validity period exceeding thirty, in case of public works, or where the procurement procedure is conducted under a control integrated in a process stipulated by a separate act of legislation, sixty days from its commencement (the conclusion of negotiations).

5. If the contracting authority invites only one tenderer to tender in the procedure, by way of derogation from Article 69 instead of using the European Single Procurement Document, the contracting authority may require that the certificates concerning the non-existence of the grounds for exclusion and the fulfilment of the suitability criteria - if prescribed by the contracting authority - shall be submitted upon submitting the tender. Article 76(5) shall not apply if only one tenderer is invited to submit tender. (This paragraph entered into force on 1 January 2017.)

101. §

1. Article 88(2)-(4) shall also apply accordingly to negotiations. Article 88(9) shall apply subject to the condition that the final tender shall only be submitted in writing, if more than one tenderer participates in the procedure.

2. In the course of the negotiation, the subject-matter and the terms of the public procurement may not be modified in such a way as to

  1. result in a divergence in the properties or conditions of the subject-matter or the terms of the contract awarded in the procedure from the original subject-matter intended to be purchased or from the terms of the contract laid down at the time of sending of the invitation to tender to such an extent that would have not allowed the application of a negotiated procedure without prior publication of a contract notice,
  2. modify the terms set out in the invitation to tender and the procurement documents or complement those terms to such an extent that makes any tenderer incapable to submit a final tender at the end of the negotiations, or
  3. change the award criteria or method. 
102. §

1. In negotiated procedures without prior publication of a contract notice under Article 98(2)(e), negotiations shall be conducted and a written contract concluded when the negotiations have been completed with the tenderer or the tenderers able to perform the contract within the period of time required by the extraordinary circumstances or, if more economic operators received a call for competition or an invitation, with the tenderer who submitted the most favourable tender.

2. In that case the contracting authority shall send an invitation to tender or, where such an invitation to tender may not be drawn up due to an extreme urgency brought about by the circumstances, an invitation to negotiation to the suitable economic operators. The invitation to negotiation shall state the name and seat of the tenderer, the place and time of the negotiation and at least the subject-matter and the quantity of the public procurement.

3. In a procedure to be conducted on imperative grounds of urgency

  1. contracting authorities need not state the reasons for not prescribing any suitability criteria, if that is the case.
  2. in addition to the verification of the available electronic records, contracting authorities can accept the tenderer’s self-declaration (included, if appropriate, in the ESPD), for the purposes of the final verification of the non-existence of the grounds for exclusion. (This amendment entered into force on 1 January 2017.)

103. §

1. On the starting date of a negotiated procedure without prior publication of a contract notice, the contracting authority shall submit to the Public Procurement Authority the invitation to tender, as well as an information note on the name and address (seat, residence) of the economic operators to be invited to tender, the estimated value of the public procurement and the circumstances which justify the use of the negotiated procedure.

2. For the purposes of Article 98(2)(e), when the contracting authority sends the invitation to tender or, where appropriate, the invitation to negotiation to the economic operators, he shall be bound to inform at the same time, without delay the Public Procurement Authority according to the provisions set out in paragraph (1). Instead of the invitation to tender, the invitation to negotiate shall be sent, where appropriate.

3. On the starting date of the negotiated procedure specified in Article 98(4)(c) and (d), an information note stating the circumstances which justify the use of the negotiated procedure and, in cases according to point (d), the name and address of the organisation concerned shall be submitted by the contracting authority to the Public Procurement Authority.

4. The Public Procurement Authority shall take a substantiated decision, stating the detailed reasons, based on which it can be clearly established whether the legal basis for using a negotiated procedure is justified. The Public Procurement Authority shall publish its decision on its homepage as well. (This amendment entered into force on 1 January 2017.)

5. In case of the application of negotiated procedure without prior publication under Article 98(2)(c), the contracting authority shall publish the notice specified in Article 137(2) at least ten days before the conclusion of the contract. (This paragraph entered into force on 1 January 2017.)

6. The contracting authority shall publish on the starting date of a negotiated procedure without prior publication, both in the Public Procurement Database and on its homepage, all the documents that have been sent to the Public Procurement Authority under paragraph 1, the procurement documents and, following the opening of tenders, the minutes taken on the opening of tenders. (his paragraph entered into force on 1 January 2017.)