Közbeszerzési Hatóság

Chapter VII - The Binding Nature of the Parties' Declarations in Procurement Procedures (53-55. §)

Withdrawal from the public procurement

53. §

1. The contracting authority shall have the right to revoke the notice launching the procedure, until the expiry of the time limit for the submission of tenders in case of open procedures or the time limit for requests to participate in case of procedures consisting of more than one stage.

2. If the notice launching the procedure was published, a notice shall be published concerning the revocation before the expiry of the time limit set out in paragraph 1, and at the same time those economic operators who expressed their interest to the contracting authority shall be informed. In procedures without prior publication of a notice, economic operators invited to submit a tender or to participate shall be informed simultaneously and directly, before the expiry of the original time limit.

3. The publication of the prior information notice shall not constitute an obligation to conduct a procurement procedure, even if the notice was aimed at publishing the procurement procedure. In the latter case, the contracting authority shall publish a notice stating that the procedure will not be launched and shall notify economic operators who submitted their declaration of interest.

4. After the expiry of the period prescribed in paragraph 1, the contracting authority is not obliged to assess tenders or requests to participate, to conclude the negotiation or the competitive dialogue, in procedures consisting of more than one stage it has the right to withdraw the invitation to tender by the expiry of the time limit for submission of tenders, if it provides proof that he is incapable of performing the contract due to unforeseeable and unavoidable reasons, which occured after the expiry of the period prescribed in paragraph 1, beyond its control or, due to such circumstances there exists the right to withdraw from or to terminate the contract. In such cases, the contracting authority shall declare the procedure unsuccessful.

5. Contrary to the provisions set out in paragraph 4, where the contracting authority informed economic operators in the notice launching the procedure that the procedure may be declared unsuccessful in case of the occurrence of a specific, unavoidable, uncertain future event after the expiry of the period prescribed in paragraph 1, it has the right to declare the procedure unsuccessful (conditional public procurement).

6. A conditional public procurement may also be launched in the event that the contracting authority has submitted, or will submit an application for funding (tender, project proposal, amendment of a funding agreement or notification of a change), irrespective of whether or not the call for proposal of funding has already been published, and the contracting authority considers that the rejection of the application or the award of a lower funding is capable of constituting a circumstance such as to justify declaring the procedure unsuccessful.

7. Article 75 shall apply where the procedure is declared unsuccessful on any other ground and Article 131(9) shall apply to the obligation to conclude the contract after sending the results of the procedure.

8. The candidate shall have the right to withdraw his request to participate until the expiry of the time limit for participation. The tenderer shall have the right to withdraw his tender until the beginning of the validity period.

9. As regards the validity period relevant to the tenderer, the rules set out for each type of procurement procedure shall govern respectively.

Tender guarantee

54. §

1. A contracting authority may make subject participation in the procedure to the condition of provision of a tender guarantee to be provided by tenderers by the beginning of the validity period, in the amount defined in the contract notice. Tenderers shall produce proof of having the tender guarantee provided to the contracting authority. The tender guarantee ensures the observance of the validity period of the tender and the contracting authority may not make subject the participation in the participation stage to the condition of provision of a guarantee.

2. The tender guarantee may be provided by having the prescribed sum deposited into the payment account of the contracting authority or by the provision of a guarantee or surety undertaken by a financial institution or an insurance company or by furnishing a promissory note issued pursuant to an insurance contract containing surety, at the choice of the tenderer. The place of payment and the payment account number of the contracting authority, together with the method of evidencing such payment shall be defined in the contract notice or in the invitation to tender.

3. The amount of the tender guarantee shall be established in a way that ensures equal opportunity to all tenderers and set so as to cover any potential cost to be incurred, as foreseeable, by the contracting authority in the event of infringement of the validity period of the tender as described in paragraph 4. Where the contracting authority allows the division of the public procurement into lots, the tender guarantee and the amount thereof shall be set separately for each lot.

4. If the tenderer withdraws its tender during the validity period or the contract is not concluded due to a reason arising within the tenderer‘s sphere of interest, the tender guarantee shall be forfeit and can be claimed by the contracting authority, except in the case set out in Article 131(9). Furthermore, the tender guarantee shall be forfeit and can be claimed by the contracting authority, where the tender is to be regarded as invalid on the ground that the tenderer, at the request of the contracting authority, does not submit or does not submit properly the documents supporting his self-declaration included in the European Single Procurement Document (ESPD), concerning his tender subjected to the validity period.

5. The tender guarantee shall be refunded

  1. to tenderers within ten days after the withdrawal of the contract notice or the invitation to tender, or after having their tender declared invalid or after the dispatch of the notice on the results of the procedure to the tenderers;
  2. to the successful tenderer or, where it is referred to in the summary, to the tenderer ranked second, within ten days after the conclusion of the contract, unless the contract notice stipulated the tender guarantee to be retained and transferred as additional security which confirms the ensuing contract.

6. If participation in the procedure was made subject to the condition of the provision of a tender guarantee, the contracting authority shall, within ten days, refund double the amount in case of a tender guarantee furnished in cash, or an amount equivalent to the tender guarantee in all other cases

  1. to tenderers in the event of failing to notify tenderers of the results of the procedure during the validity period as set in the invitation to tender or during the extended validity period;
  2. to the successful tenderer and, where it is referred to in the summary, to the tenderer ranked second, in the event of failing to conclude the contract, except in the case set out in Article 131(9).

7. Where, before the end of the validity period, the contracting authority requests tenderers to maintain their tender, in the cases set out in this Act, and any of the tenderers or all tenderers choose not to maintain the tender, the guarantee shall be refunded within ten days after the receipt of the tenderer’s statement or the dispatch of the notice on the results of the procedure to the tenderers, without application of the provisions set out in paragraph 6. Tenderers who maintain their tender shall be requested by the contracting authority in the invitation to maintain the tender to offer the same guarantee as the one that was offered before, for the extended validity period of the tender. 

Modification of the invitation and other procurement documents, furthermore, the tender and the request to participate

55. §

1. If the contracting authority intends to modify the contents of an invitation (including the extension of the time limits) published in a notice, it shall have the right to modify the terms specified in the invitation by the publication of a notice. The notice shall contain a reference, to the fact that the other procurement documents were also modified. (This amendment entered into force on 1 January 2017.)

2. The notice modifying the invitation shall be dispatched until the expiry of the time limit to submit tenders or, in the participation stage of a procedure consisting of more than one stage the time limit for participation; furthermore, before the expiry of the original time limit, the contracting authority shall inform simultaneously the economic operators who have expressed their interest in the procedure - in particular those who electronically accessed the procurement documents or asked for additional information – on its intent of modification as well as on the dispatch of the modifying notice. No measure or decision shall be taken and no documents shall be submitted in the procurement procedure before the publication of the modifying notice. (This amendment entered into force on 1 January 2017.)

3. If the contracting authority intends to modify the contents of an invitation in relation to which no notice was published or the contents of any other procurement document which was not published, economic operators who were invited to submit a tender or, in case of a direct invitation to participate, those invited to participate, as well as those who have expressed their interest in the procedure shall be informed of the modification directly, at the same time, in the case of an invitation to tender and procurement documents related to the tendering stage until the expiry of the time limit to submit tenders, while in the case of an invitation to participate and procurement documents related exclusively to the participation stage until the expiry of the time limit for participation. 

4. The contracting authority shall make the modifications of the procurement documents available directly, electronically, at the same place as the original documents.

5. In the participation stage of the restricted procedure, the elements of the invitation to tender or the procurement documents which have already been included in the invitation to participate may not be modified.

6. The modification of the invitation and the other procurement documents shall not have the effect of modifying the subject-matter or the terms of the contract to such an extent that the knowledge of the new conditions could have substantially influenced the decision of the economic operators concerned as to whether they can submit a request to participate or a tender in the procurement procedure or, in light of the change, the suitability criteria should have been established by the contracting authority in such a way that more economic operators could have participated in the procedure.

7. The tenderer and the candidate shall have the right to modify its tender or request to participate by submitting a new tender or request to participate, until the expiry of the time limit to submit tenders or time limit for participation. In such cases, the tender or request to participate which was submitted first should be considered as withdrawn.