Közbeszerzési Hatóság

104. §

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.