Közbeszerzési Hatóság

Chapter XVI - Specific Procurement Methods (104-109. §)

Framework agreement

104. §

1. The contracting authority may carry out its public procurement through a framework agreement as well.

2. For this purpose, he shall conclude a framework agreement by conducting a procurement procedure in line with the provisions set out in this Act and subsequently, on the basis of the framework agreement, shall carry out the public procurement according to the provisions set out in this subchapter.

3. The contracting authority shall indicate in the notice launching the procedure whether the procedure is aimed at the conclusion of the framework agreement with one or more tenderer(s), furthermore, how the procurement can be carried out on the basis of the framework agreement, in accordance with Article 105. The tenderers participating in the framework agreement are bound by the obligation to submit a tender and to conclude the relevant contract. Regardless of whether the division of the contract into lots is accepted, the contracting authority may also provide that each contract concerning the different parts of the framework agreement shall be concluded in the different ways specified by Article 105(1) or, where more than one tenderer participate in the contract, Article 105(2).

4. On the basis of the framework agreement, in the cases set out in Articles 29-30 and 31-32, only the contracting authorities nominated in the notice launching or announcing the procedure shall have the right to conclude contracts with the tenderers participating in the framework agreement.

5. In the case of framework agreements to be concluded with several tenderers, the contracting authority shall state in the notice launching the procedure the range of the tenderers that have submitted the most favourable tender according to the award criteria and he shall conclude the framework agreement with a number of tenderers not exceeding that highest limit number. The range shall be adjusted to the subject-matter of the public procurement and to the specific characteristics of the procedure, and under all circumstances shall ensure genuine competition. The range shall include at least three tenderers, but the obligation to conclude the framework agreement with at least three tenderers shall only be met, if there are at least three tenderers who submitted a valid tender. Where several tenders are identical at the limit of the highest number of tenderers that have submitted the most favourable tenders, the contracting authority can, instead of applying Article 77(5), conclude a framework agreement with all such tenderers that have submitted identical tenders. Where the contracting authority indicated in the notice launching the procedure that the procedure is aimed at the conclusion of the framework agreement according to Article 105(2), the procedure may also be declared invalid, if only one suitable tender has been submitted. In the case of framework agreements to be concluded with several tenderers, the second sentence of Article 69(5) shall apply to all tenderers participating in the framework agreement.

6. The term of a framework agreement may not exceed four years, except in duly substantiated exceptional cases, taking into consideration, in particular, the subject-matter of the framework agreement. In this respect it shall be considered whether the specific features related to the given framework agreement require the setting of a longer fixed term, and whether or not it results in a disproportionate restriction of competition. The notice starting a procurement procedure to be conducted for the conclusion of a framework agreement exceeding four years shall specify the justification of the setting of a longer term.

7. The contracting authority is not obliged to implement its public procurement according to the framework agreement, particularly when the framework agreement has been concluded for a term of several years or when the number of tenderers that concluded the framework agreement does not allow genuine competition. In this case the contracting authority, in the notice launching the new procedure, shall refer to this circumstance and, if the procedure is launched with a notice, shall inform without any delay the tenderers that concluded the framework agreement about the publication of this new notice.

8. On the basis of the framework agreement, contracts may only be concluded during the period of the framework agreement and the quantity purchased on the basis of the framework agreement may not exceed the total quantity envisaged in the framework agreement.

9. Where a written consultation or the reopening of competition takes place on the basis of the framework agreement, the terms laid down in the framework agreement may not be substantially modified in the course of the written consultation or the reopening of competition. 

105. §

1. On the basis of a framework agreement concluded with one tenderer, including those cases in which the procedure was aimed at the conclusion of a framework agreement with several tenderers, but finally it was concluded with the sole valid tenderer, the realisation of the given public procurement may take place as follows:    

  1. if the framework agreement sets out all terms of the contract(s) aimed at the realisation of the public procurement based on it, according to the terms set in the framework agreement, through a direct purchasing order placed by the contracting authority;
  2. if the framework agreement sets out all terms of the contract(s) aimed at the realisation of the public procurement based on it, according to point (a) through a direct purchasing order or according to point (c) through the conclusion of the contract following a written consultation, provided that the latter was prescribed by the contracting authority in the framework agreement as well as previously in the relevant procurement procedure, in the notice launching the procedure. The choice of whether specific public contracts shall be executed following the written consultation or directly according to the terms set out in the framework agreement shall be made pursuant to the objective criteria set out in the framework agreement. The framework agreement shall also specify which terms may be subject to written consultation. In the course of the written consultation, the tenderer shall submit a tender which is similar to or more favourable than the terms of the framework agreement.
  3. if the framework agreement does not set out all terms of the contract(s) aimed at the realisation of the public procurement based on it, through the conclusion of the contract following a written consultation. In the invitation for consultation, the tenderer shall be invited by the contracting authority to complement his tender submitted in the procedure aimed at the conclusion of the framework agreement; the supplements to be taken into consideration by the tenderer when drawing up his tender shall be laid down by the contracting authority in the invitation for consultation. The invitation for consultation shall specify the data related to the subject-matter and the contract terms of the given public procurement. In the course of the written consultation, the tenderer shall submit a tender similar to or more favourable than the terms of the framework agreement, the tenderer shall be bound by his tender submitted in the course of the consultation until the deadline set in the invitation for consultation. The contracting authority shall notify the tenderer of the acceptance or the rejection of his tender submitted in the course of the consultation.

2. On the basis of a framework agreement concluded with several tenderers the realisation of the given public procurement may take place as follows:

  1. if the framework agreement sets out all terms of the contract(s) aimed at the realisation of the public procurement based on it, according to the terms set in the framework agreement, through a direct purchasing order, placed by the contracting authority with the tenderer(s) selected pursuant to the objective criteria established in the framework agreement. The framework agreement shall specify the objective criteria (in particular the ranking established on the basis of the award criterion applied in the first part or any other objective criteria related to the subject-matter of the public procurement to be executed on the basis of the framework agreement) on the basis of which the contract for the execution of the given public procurement will be concluded by the contracting authority with a tenderer participating in the framework agreement.
  2. if the framework agreement sets out all terms of the contract(s) aimed at the realisation of the public procurement based on it, according to point (a) through a direct purchasing order or according to point (c) through the reopening of the competition, provided that the latter was prescribed by the contracting authority in the framework agreement as well as previously in the relevant procurement procedure, in the notice launching the procedure. The choice of whether specific public contracts shall be executed following a reopening of competition or directly on the terms set out in the framework agreement shall be made pursuant to objective criteria, which shall be set out in the framework agreement. In the framework agreement, it shall also be specified which terms may be subject to reopening of competition.
  3. if the framework agreement does not set out all terms of the contract(s) aimed at the realisation of the public procurement based on it, through the reopening of the competition pursuant to paragraph (3)-(5).

3. In application of paragraph 2(b) or (c), the contracting authority shall send an invitation to tender in writing, at the same time to all tenderers that concluded the framework agreement. No other tenderer may be involved in the procedure. The invitation to tender shall include 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 notice announcing or launching the procedure to be conducted for the conclusion of the framework agreement and the date of its publication;
  3. reference to the concluded framework agreement;
  4. subject-matter and quantity of the specific public procurement;
  5. determination of the contract;
  6. term of the contract or time limit for performance of the contract;
  7. place of performance/delivery;
  8. conditions for settling the consideration or reference to the applicable law;
  9. time limit for submission of the tender, the address used for the submission of tenders and an indication whether the tender may also be submitted in a language other than the Hungarian;
  10. place and, if it is not made electronically, time of opening the tenders and the parties authorised to be present;
  11. an invitation addressed to the tenderers according to which they shall make a declaration concerning the non-existence of the grounds for exclusion;
  12. any other information necessary for the submission of the tender, as regards, where appropriate, the accessibility of further procurement documents;
  13. validity period of the tender;
  14. award criteria and method according to Article 76.

4. The contracting authority may apply award criteria other than those applied in the procedure conducted for the conclusion of the framework agreement, provided that he specified those criteria in the procurement documents in the course of the procedure conducted for the conclusion of the framework agreement and those criteria are included in the framework agreement as well. The award criteria and method shall be specified according to Article 76. The tenderer may only submit tenders which are similar to the contents of the framework agreement or which are more advantageous for the contracting authority compared to the contents of the framework agreement.

5. Article 68(4) shall apply to the opening of tenders, Article 69(1) and Articles 73-75 shall apply to the evaluation of tenders, Article 79 shall apply to the communication of the decisions of the contracting authority, furthermore, Article 131 shall apply to the conclusion of the contract. The amount specified in Article 73(6)(c) may also be indicated in the invitation to consultation or invitation to tender sent to the tenderers participating in the framework agreement. 

Dynamic purchasing system

106. §

1. The contracting authority may create a dynamic purchasing system for the implementation of its commonly used public procurements.

2. The dynamic purchasing system shall be operated as a completely electronic process, in which all communications between the contracting authority and the tenderers shall be made electronically.

3. Any economic operator shall have the right to join the dynamic purchasing system throughout its entire duration, provided that he satisfies the selection criteria laid down by the contracting authority.

4. The dynamic purchasing system may be divided by the contracting authority into several phases on the basis of the objective characteristics of procurements to be realised in the given phase (in particular on the basis of the highest value or the place of performance/delivery of contracts to be concluded in the given phase). In this case each part and the characteristics thereof shall be included in the notice launching or, in the case of procedures advertised in a prior information notice, advertising the procedure. The suitability criteria shall be established by the contracting authority separately for each phase. Article 61(4)-(6) shall not apply.

107. §

1. Admittance to the dynamic purchasing system is subject to the rules on the participation stage of the restricted procedure, while the implementation of the procurement in the dynamic purchasing system is subject to the rules on the tendering stage of the restricted procedure, with the differences stipulated in this subchapter. Article 83(3) shall not apply.

2. The notice launching or, in the case of procedures announced in a prior information notice, announcing the procedure shall indicate that a dynamic purchasing system is involved. Upon the start of the procedure, the subject-matter of the public procurement shall be specified in the procurement documents in such a way as to allow clear determination of the nature of the purchases envisaged, furthermore, the procurement documents shall include the estimated quantity of the purchases envisaged, the incidental classification of goods, works or services to be purchased and the features of each category as well as the substantial contract terms on the basis of which the economic operators are able to decide whether or not they intend to participate in the dynamic purchasing system. The procurement documents shall also specify all the necessary information concerning the dynamic purchasing system, including how the dynamic purchasing system operates, the electronic equipment used, furthermore, the technical connection arrangements and specifications. The exact technical specifications and contract terms concerning a specific public procurement to be implemented in the system shall be made available at the time of the sending of the invitation to tender. (This amendment entered into force on 1 January 2017.)

3. Contracting authorities shall by electronic means offer direct access free of charge to the procurement documents, as long as the system is valid.

4. All the candidates who meet the suitability criteria shall be admitted to the dynamic purchasing system, the number of candidates to be invited to tender may not be limited.

5. When implementing the dynamic purchasing system, 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, the rules on accelerated procedures shall not apply. This time limit for participation shall govern the implementation of the system and, within its framework, the sending of the invitation to tender related to the first public procurement. No further time limits for participation may be set in relation to subsequent public procurements to be carried out in the system, requests to participate may be submitted throughout the entire duration of the system.

6.  The contracting authority shall be bound to evaluate the requests to participate within ten days from the date of receipt thereof and notify the candidates of their admittance to the dynamic purchasing system or of their rejection. In duly justified cases the time limit may be extended to fifteen business days, in particular in case of a request for supply of missing information or provision of information. When implementing the dynamic purchasing system, the evaluation period may be extended; in such cases the invitation to tender related to the first public procurement may not be sent until the evaluation of the requests to participate is completed. The summary of the evaluation of requests to participate shall only be prepared at the time of the implementation of the dynamic purchasing system. All candidates shall be notified of the extended period of the evaluation.

7. Contracting authorities shall invite all admitted economic operators to submit a tender for each specific procurement under the dynamic purchasing system. Where the dynamic purchasing system has been divided into different categories, contracting authorities shall invite all economic operators having been admitted to the category corresponding to the specific procurement concerned to submit a tender. 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. Sub-central contracting authorities may apply Article 84(6) when setting the time limit for submission of tenders.

8. As regards the given public procurement, the winning tenderer shall be the tenderer which has submitted the most favourable tender according to the evaluation criteria published in the notice launching or, in the case of procedures announced in a prior information notice, advertising the procedure in relation to the dynamic purchasing system. For the purposes of the evaluation of requests to participate and tenders Article 69 shall apply, save that the contracting authority may request at any time during the whole period of the system that the admitted economic operators submit the ESPD, consisting of an updated self-declaration, within five business days. 

9. The notice launching or, in the case of procedures announced in a prior information notice, advertising the procedure shall indicate the duration of the dynamic purchasing system. Any change to the duration shall be published in the notice specified in a separate act of legislation.

10. No charges may be billed to economic operators in relation to their participation in the dynamic purchasing system. 

Electronic auctions

108. §

1. In electronic auctions, new prices, revised downwards, and/or new values concerning certain quantifiable elements of tenders are presented by tenderers. For this purpose, contracting authorities shall structure the electronic auction as a repetitive electronic process, which occurs after the evaluation of the tenders according to Article 76, enabling them to be ranked using automatic evaluation methods.

2.  If it was indicated in advance in the notice launching the procedure, contracting authorities may initiate an electronic auction with the aim of selecting the winning tenderer, in the following cases:

  1. in open, restricted or negotiated procedures, where the content of the procurement documents, in particular the technical specifications, can be established with precision,
  2. on the reopening of competition among the parties to a framework agreement as provided for in Article 105(2)(b) or (c),
  3. the award of contracts under the dynamic purchasing system referred to in Article 106.

3. Certain public service contracts and certain public works contracts having as their subject-matter intellectual performances, such as the design of works, shall not be the object of electronic auctions.

4. The electronic auction may take place in a number of successive phases.

5. The electronic auction shall be based on one of the following elements of the tenders:

  1. solely on prices where the contract is awarded on the basis of price only;
  2. on prices and/or on other award criteria applied in the procedure where the contract is awarded on the basis of the best price-quality ratio or to the tender with the lowest cost.

6. In the case set out in Article 5(b), an electronic auction may only be initiated in relation to criteria which can be established with sufficient precision. It is considered that the award criteria can be established with sufficient precision, if they are quantifiable and can be expressed in figures or percentages in such a way as to enable the tenders to be ranked automatically according to a predetermined formula.

7. Before proceeding with an electronic auction, contracting authorities shall evaluate tenders pursuant to Article 76, in accordance with the award criterion or criteria and with the weighting fixed for them.

8. Following the evaluation of tenders according to paragraph 7, all tenderers shall be notified by electronic means and invited simultaneously to participate in the electronic auction using, as of the specified date and time, the connections in accordance with the instructions set out in the invitation.

9. The electronic auction may not be used by the contracting authority contrary to its purpose, in particular for preventing, restricting or distorting competition, furthermore, following the conduct of the electronic auction the subject-matter of the contract concluded on the basis of the procedure may not differ from the subject-matter defined in the notice launching the procedure and the procurement documents.

10. After closing the electronic auction, the winning tenderer shall be selected on the basis of the results of the electronic auction, according to Article 76 and, where the certificates were not submitted at an earlier stage, according to Article 69(4)-(6).

11. Detailed rules pertaining to the conduct of electronic auctions are laid down in a separate act of legislation. 

Electronic catalogues

109. §

1. Where the use of electronic means of communication is required by the contracting authority in accordance with Article 41(3), it may stipulate in the notice launching the procedure that tenders must be presented in the format of an electronic catalogue or tenders must be accompanied by an electronic catalogue.

2. Tenderers shall be allowed to attach other documents, completing the tender, to tenders presented in the form of an electronic catalogue.

3. Where the presentation of tenders in the form of electronic catalogues is required, contracting authorities shall:

  1. state so in the notice launching the procedure or, where a prior information notice is used as a means of calling for competition, in the direct invitation to participate;
  2. indicate in the procurement documents all the necessary information, pursuant to a separate act of legislation, concerning the format, the electronic equipment used and the technical connection arrangements and specifications for the electronic catalogue.

4. The electronic catalogue shall be produced by the tenderer for participation in a specific procurement procedure, in accordance with the format and technical specifications established by the contracting authority on the basis of paragraph 3(b) as well as the requirements for the electronic means of communication defined on the basis of a separate government decree.

5. Where a framework agreement has been concluded with more than one economic operator following the submission of tenders in the form of electronic catalogues, contracting authorities may provide that the reopening of competition for specific contracts shall take place on the basis of the updated catalogues.

6. In the case set out in paragraph 5, contracting authorities shall use one of the following methods:

  1. invite tenderers to resubmit their electronic catalogues, adapted to the requirements of the contract in question; or
  2. notify tenderers that they intend to collect the information needed to constitute tenders adapted to the requirements of the contract in question, from the electronic catalogues which have already been submitted.

7. The contracting authority shall indicate in the procurement documents for the framework agreement that he will apply the method specified in Article 6(b).

8. Where contracting authorities reopen competition for specific contracts in accordance with paragraph 6(b), they shall notify tenderers of the date and time at which they intend to collect the information needed to constitute tenders adapted to the requirements of the specific contract in question, at least five business days before the collection of information starts. The contracting authority shall give tenderers the possibility to refuse such collection of information.

9. Before awarding the contract, contracting authorities shall present the collected information to the tenderer concerned so as to give it the opportunity to contest or confirm that the tender thus constituted does not contain any material errors.

10. Contracting authorities may also require that offers be presented in the format of an electronic catalogue, when using a dynamic purchasing system.

11. Contracting authorities may also apply the method specified in paragraph 6(b) and paragraph 8 in the framework of a dynamic purchasing system, provided that the request for participation in the dynamic purchasing system is accompanied by an electronic catalogue in accordance with the technical specifications and format established by the contracting authority. That catalogue shall be completed subsequently by the candidates, when they are informed of the contracting authority’s intention to constitute tenders by means of the procedure set out in paragraph 6(b).