Közbeszerzési Hatóság

Chapter XVII - Rules Pertaining to the Procedures Below EU Tresholds (110-117. §)

110. §

This Chapter shall apply to public contracts, not including works and service concessions, the value of which is below EU thresholds and at the same time is equal to or greater than national thresholds. Furthermore, the procedure pursuant to this Chapter may be applied in cases where Chapter III of this Act permits or requires it [Article 19(4); Article 21(2)].

Exceptions

111. §

This Act shall not apply to the following procurements the value of which is below EU thresholds:

  1. to the procurement of textbooks, if it is carried out in accordance with the Act on the Rules for the Textbook Market of the National Public Education, in the framework of the supply of textbooks to schools and where the textbook is registered in the textbook register.
  2. to the procurement of supplies and services for the full boarding of children situated in children’s homes and apartment homes on the basis of the Act on the Protection of Children and on Guardianship Administration, for the full boarding of those who receive after-care and of persons receiving social services under Articles 59-85/A of Act III of 1993 on Social Administration and Social Benefits;
  3. to hotel and catering services under Annex 3, library management services which are covered by CPV codes 79995000-5 to 79995200-7, recreational, cultural and sporting services which are covered by CPV codes 92000000-1 to 92700000-8, as well as legal services;
  4. to any kind of service under Annex 3, provided that its estimated value is below HUF 18 million;
  5. to the procurement within the framework of international development cooperation and international humanitarian aid activity[1];
  6. to the procurement of cold foodstuffs and cooking raw materials, fresh and processed vegetables and fruits, milk and dairy products, cereals, bread products, honey, eggs, horticultural plants;
  7. in case of public services aimed at the creation of a literary (technical, scientific) work, or involving consulting or personal interpreting activity necessary for the performance of the contracting authority’s core activity;
  8. to the procurement of services of an accredited public procurement consultant;
  9. to Article 3(5)(7)(9) of the Act CXXVIII of 2011 on Disaster Management and the Amendment of Certain Related Acts, as well as, in case of an emergency or urgent situation, to public procurements carried out with the aim of preventing epidemic diseases in animals, directly preventing or avoiding damage caused by serious industrial or traffic accidents or by water, preventing adverse impacts on water quality, as well as for the purposes of protective preparedness or the subsequent reconstruction;
  10. to the procurement of goods made, services provided and works executed in the framework of obligatory employment of prisoners;
  11. to the procurement of goods made, services provided and works executed by a public employer in the framework of public employment;
  12. to the use of services related to cash management pursuant to the Act on Credit Institutions and Financial Enterprises;
  13. to the procurements of an organization providing postal services or other services than postal services provided by a postal service provider;
  14. the purchase of items within the domain of cultural goods and other rights related thereto, as well as the purchase of musical instruments, accessories of musical instruments and parts of musical instruments; (This amendment entered into force on 1 January 2017.)

  15. to the procurements financed from the allocation stipulated by Article 113 and 114(3) of the Act XXXVI of 2012 on the National Assembly;
  16. to public services which are awarded for carrying out, or directly facilitating, the scientific, awareness-raising, research or educational activities specified in the statutes of the foundation established on the basis of Article 1 of the Act XLVII of 2003 on the foundations carrying out scientific, awareness-raising, research, educational activities which assist the functioning of political parties;
  17. to the procurement carried out for a foreign representation;
  18. the procurement of architectural and engineering planning services, interior design planning services, settlement or landscape planning services related to buildings as defined in the Act on the Formation and Protection of the Built Environment – to specialised planning activities related thereto, only if the latter is procured together with architectural, interior design, settlement or landscape planning, in relation to the same planned works; (This amendment entered into force on 1 January 2017.)

  19. to services covered by CPV codes 71241000-9, 71242000-6, 71244000-0, 71246000-4, 71247000-1, provided that such service is purchased together with an architectural service specified in point (r), for the same public works;
  20. to the procurement of goods made or services provided by disadvantaged workers, in a sheltered place of employment.
  21. the procurement of soil amendments and approved pesticides covered by CPV codes from 24400000-8 to 24457000-2 and used in agricultural production, research; (This point entered into force on 1 January 2017.)

  22. the procurements to be realised using subsidies aimed at R&D and innovation, in relation to goods covered by CPV codes from 24000000-4 to 24327500-7 and from 24500000-9 to 24965000-6; (This point entered into force on 1 January 2017.) 

    x) procurements in case of which the task specified in the contract is carried out by a contracting authority under Article 5(1) or Article 7(2) or by an association of such contracting authorities based on an exclusive right exercised pursuant to law or administrative decision, in compliance with the TFEU. (This point entered into force on 1 January 2017.)


[1] This amendment entered into force on 1 January 2016.

Procedural rules to be applied

112. §

1. For the purposes of carrying out a public procurement covered by this Part, the contracting authority, according to its choice

  1. shall conduct a procedure developed independently in a way pursuant to Article 117, or
  2. shall proceed according to the rules set out in Part Two of this Act, with the differences stipulated in Articles 113-116.

2. For the purposes of paragraph 1(b), Part Two of the Act shall apply in compliance with the separate act of legislation specified in Article 21(4), subject to the criteria set out in Articles 22-24.

113. §

1. The open, restricted or negotiated procedure shall not be launched with the publication of a notice. The contracting authority shall send a summary information concerning the procedure to be initiated to the Public Procurement Authority, at least five business days before the starting date of the procedure but within a maximum of twelve month, at the electronic location and in the manner foreseen by the Public Procurement Authority and that summary information shall be published by the Public Procurement Authority on its homepage, within one business day following the sending thereof. The name and address of those – at least three - economic operators to whom the contracting authority will send the notice launching the procedure on its own initiative shall be sent, simultaneously with the summary information, by the contracting authority to the Public Procurement Authority. The summary information shall specifically contain the name and address of the contracting authority, the contact point where interest in the procedure can be expressed, the subject-matter of the contract, the quantity of the procurement or any other information determining the scale of the performance/delivery, the duration of the contract or the time limit of performance/delivery, place of performance/delivery, the reservation under Article 114(11) as well as the invitation addressed to the economic operators to express their interest in the procedure to the contracting authority by the time limit set in the summary information, noting that the time limit may not be shorter than five business days following the sending of that summary information.Article 75(6) shall apply, with the proviso that reference to the application of Article 75(2)(e) shall be included in the summary information instead of the notice launching the procedure. The rules on further data and detailed contents of the summary information shall be laid down in a separate act of legislation.

Data concerning the subject-matter of the public procurement shall be given in the summary information in such a way as to make it possible for economic operators to assess whether they intend to express their interest to the contracting authority. The expression of interest shall be subject to Article 41, except that the economic operator shall not be required to supply statements made by electronic means with an advanced electronic signature. The contents of the summary cannot be modified following its publication. If the contracting authority does not intend to launch the procedure or to launch the procedure according to the data included in the summary information, it shall notify the Public Procurement Authority of the withdrawal of the summary information within twelve month following the sending of the summary information, at the electronic location and in the manner foreseen by the Public Procurement Authority, furthermore, it shall notify thereof in writing the economic operators who have already expressed their interest in the procedure. The Public Procurement Authority shall publish the information on such withdrawal on its homepage within one business day following the notification. (This amendment entered into force on 1 January 2017.)

2. The contracting authority shall send the notice launching the procedure to at least three economic operators – who were previously presented to the Public Procurement Authority - and additionally to all other economic operators who have expressed their interest in the procedure to the contracting authority. The notice launching the procedure shall be directly sent to the economic operators at the same time, in writing, not later than twelve months after sending the summary information. The procurement documents shall be made available by the contracting authority on the date of sending of the call for competition at the latest, in accordance with Article 57. Only those economic operators have the right to submit a tender or a request to participate in the procedure to which the contracting authority has sent the notice launching the procedure. Any economic operator who received the notice launching the procedure shall have the right to submit a joint tender or a joint request to participate with another economic operator too, even if the latter has not received the notice launching the procedure. Upon the opening of tenders or requests to participate, the contracting authority shall indicate to which economic operators he has sent the notice launching the procedure on his own initiative. (This amendment entered into force on 1 January 2017.)

3. For the purposes of application of paragraph 2, in the course of the selection of economic operators, the principle of equal treatment shall be complied with and, if possible, in particular the participation of micro, small or medium-sized enterprises shall be enhanced. For the purposes of the consideration thereof, the restrictive provision laid down in Article 3(4) of the Act XXXIV of 2004 on Small and Medium-sized Enterprises and the Support Provided to Such Enterprises shall not apply.

4. In case of application of paragraphs 1-2, instead of publishing a notice on the modification of the time limit for submission of tenders or requests to participate, on the amendment of the notice launching the procedure, the procurement documents or the revocation of the notice launching the procedure, the economic operators who received the notice launching the procedure shall be informed thereof at the same time, directly, in writing by the contracting authority, prior to the expiry of the original time limit. The contracting authority shall make the modifications of the procurement documents available directly, electronically, at the same place as the original documents. Those elements of the notice launching the procedure or the procurement documents which have already been included in the summary information specified in paragraph 1 may not be amended.

5. Paragraphs 1-4 shall not apply where

  1. the estimated value of the public works is equal to or greater than HUF 700 million (This amendment entered into force on 1 January 2017.)
  2. the estimated value of the service under Annex 3 is equal to or greater than EU threshold;
  3. the contracting authority uses a prior information notice, a periodic indicative notice or a pre-qualification notice as notice announcing the procedure (This amendment entered into force on 1 January 2017.)

6. Where paragraph 1-2 shall not be applied, the notice amending the time limit for submission of tenders or the time limit to participate, the notice launching the procedure or the procurement documents shall only be dispatched, but not published until the expiry of the original time limit for submission of tenders or time limit to participate, however, the economic operators who have expressed their interest in the procedure, in particular those who had access by electronic means to the procurement documents or asked for additional information shall be notified at the same time, directly, in writing of the contracting authority’s intention of amendment and of the dispatch of the amending notice, prior to the expiry of the original time limit for submission of tenders or time limit to participate. No measures or decisions may be taken and no documents may be submitted in the procurement procedure before the publication of the amending notice. 

114. §

1. In the notice launching the procedure, the contracting authority shall be entitled to provide for the application of one or more of the grounds for exclusion pursuant to Articles 62-63, and shall be bound to provide for the enforcement of the grounds for exclusion pursuant to Article 62(1)(g)-(k), (m) and (q) in the procurement procedure. (This amendment entered into force on 1 January 2017.)

2. For the purposes of the self-declaration pursuant to Article 67(1), the standard form established by the European Commission shall not be used; where Part Two of this Act refers to the “European Single Procurement Document” (the “ESPD”) it shall mean the self-declaration pursuant to Article 67(1). Detailed information concerning Article 62(1)(kb) shall be given by the tenderer and the candidate in the self-declaration pursuant to Article 67(1) according to the rules set out in the separate act of legislation. Furthermore, the contracting authority shall verify the non-existence of the ground for exclusion in the available electronic registers in accordance with the relevant Gov. Decree. The self-declaration pursuant to Article 67(1) is merely a statement made by the economic operator that the suitability criteria he intends to certify are met; no detailed information shall be given concerning the fulfilment of the suitability criteria. Upon the contracting authority’s request pursuant to Article 69, the economic operator shall submit his self-declarations specified in the notice launching the procedure and containing detailed information on the fulfilment of the suitability criteria, according to the rules on the submission of certificates referred to in the notice launching the procedure, concerning the suitability criteria and, where appropriate, the objective criteria according to Article 82(5). If no suitability criterion is established by the contracting authority in the procedure, the notice specified in Article 69(4) shall not be applied. (This amendment entered into force on 1 January 2017.)

3. In the case of public works, the contracting authority shall make available the procurement documents in line with Article 57(1), except in the case of negotiated procedures without publication initiated on the grounds set out in Article 98(2)-(3); in other cases it is entitled to do so, with the proviso that in the case of public supplies and public services, in addition to the requirements listed in Article 57(1)(a)-(b), it is entitled to communicate the essential contract terms instead of providing a draft contract (hereinafter jointly referred to as the ‘draft contract’).

4. In open, restricted and negotiated procedures, the time limit for submission of tenders may not be shorter than the following time limits counted from the date of sending of the notice launching the procedure or the date of dispatch of the notice launching the procedure or the date of dispatch of the invitation to tender: (This amendment entered into force on 1 January 2017.)

  1. ten days in the case of public supplies and public services,
  2. fifteen days in the case of public works.

In the participation stage of the procedures consisting of more than one stage, the time limit to participate shall be set in such a way as to allow appropriate submission of requests to participate.

5. The negotiated procedure and the competition dialogue may be applied in all cases. Where the prior information notice related to the services listed in Annex 3 covers a period of more than twelve months, the direct invitation to participate may be sent more than twelve months after the date of publication of the prior information notice, but it shall be sent within the period covered by the prior information notice.

6. The supplementary information shall be provided by the contracting authority within a reasonable time before the expiry of the time limit for submission of tenders or the time limit to participate. Where the contracting authority considers it necessary to answer the question for the sake of proper submission of tenders or requests to participate but there is not enough time to provide the relevant answer in reasonable time and to take account of the answer, it may extend the time limit for submission of tenders and the time limit for submission of requests to participate in accordance with the methodology established in Article 52(3).

7. In the case of application of the framework agreement, the reopening of the competition may be realized in an electronic auction instead of application of Article 105(2), provided that it 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.

8. If the conclusion of the contract with the tenderer submitting the most advantageous tender on the basis of the assessment resulted in a higher contract value than the estimated value and thus the rules according to which the procedure was launched by the contracting authority would not have been applicable, had the contracting authority determined that value as the estimated value of the procedure, the contracting authority shall declare the procedure unsuccessful.

9. The contracting authority may launch a negotiated procedure without prior publication of a contract notice, if the publicised terms of the purchase, which are exceptionally favourable and open to all, persist only for a limited period of time and the amount of the consideration is substantially lower than the market prices, furthermore, the application of a procedure according to this Part would not allow the contracting authority to take advantage of those favourable terms.

10. Competition shall be ensured by the contracting authority also in the case specified in Article 9 and at least three economic operators - which, in the opinion of the contracting authority, are able to comply with the suitability criteria for the performance of the contract - shall be invited to tender.

11. The contracting authority may reserve the right to participate in a public procurement procedure for tenderers whose turnover, net of value added tax, did not reach in the previous year HUF 100 million in the case of public supply and public services or HUF 1 billion in the case of public works and who use subcontractors also complying with the condition set in this paragraph for the performance of the contract and who fulfil the defined suitability criteria with the support of the capacity of another entity also complying with the conditions set by this paragraph.

12. In the case of public works, paragraph 1 may only be applied if the value of the public procurement does not exceed HUF 500 million.

13. In the cases specified in Article 80(1)(b), preliminary dispute settlement may be initiated until the expiry of the time limit for submission of tenders or the time limit to participate, while in relation to the summary information specified in Article 113(1), until the expiry of the time limit set for the expression of interest. 

14. In case of services listed in Annex 3, the information specified in Article 76(9) may also be indicated in the procurement documents instead of the notice launching the procedure. (This paragraph entered into force on 1 January 2017.)

115. §

1. If the estimated value of public works does not reach HUF 300 million, the contracting authority may, according to his choice, conduct the procurement procedure either in accordance with the rules on open procedures or in accordance with the rules on negotiated procedures without prior publication at national level, with the differences laid down in this Article, except where the public contract is financed by European Union funds and is related to a cross-border project. The application of the procedure laid down in this Article is subject to the condition that, according to the knowledge of the the contracting authority, there is a sufficient number of suitable economic operators, as required by this Act in order to ensure fair competition. Procurements below the threshold set out in this paragraph may also be conducted in a procurement procedure launched by a notice specified in Article 112(1)(a) or a summary information or notice under the provisions set out in Article 112(1)(b). In case of application of the rules on open procedures, paragraphs 2-4 and 6-7 shall apply, while in case of application of the rules on negotiated procedures without prior publication of a contract notice paragraphs 5-7 shall apply. (This amendment entered into force on 1 January 2017.)

2. The contracting authority shall ensure genuine competition and, instead of publishing a notice launching the procedure, it shall directly send the invitation to tender at the same time, in writing to at least five economic operators. The contracting authority shall not be obliged to establish suitability criteria in the procedure. The invitation to tender shall only be sent to economic operators who are reliable professionals and able to perform the procurement. When selecting the economic operators to be invited to submit a tender, the contracting authority shall act in a non-discriminatory manner, shall comply with the principle of equal treatment and, if possible, shall enhance in particular the participation of micro, small or medium-sized enterprises. The economic operators invited to tender shall, if possible, vary in the different procedures. A period of five days shall be applied instead of the period of ten days set out in Article 80(5). Article 113 shall not apply. (This amendment entered into force on 1 January 2017.)

3. The provision on the minimum time limit for submission of tenders in open procedures, shall not apply. No notice shall be published on the modification of the time limit for submission of tenders, the amendment of the invitation to tender or the procurement documents or the revocation of the invitation to tender; prior to the expiry of the original deadline, the economic operators invited to tender shall be informed thereof at the same time, directly, in writing by the contracting authority.

4. Only the economic operators invited to tender may submit their tender in the procedure. Economic operators invited to tender may not submit joint tenders. Any economic operator invited to tender may submit a joint tender with any other economic operator not invited to tender by the contracting authority.

5. In the case of application of the rules on negotiated procedures without prior publication of a contract notice, paragraph 2 shall apply accordingly. Article 103(1)-(2), (4) and (6) shall not apply. (Thia amendment entered into force on 1 January 2017.)

6. Article 71 shall apply, except that the contracting authority shall not be obliged to request a further supply of missing information – without expressly referring to this fact in the procurement documents -, if the additional supply of missing information were necessary in relation to a document submitted in the framework of a supply of missing information or an economic operator nominated in the framework of a supply of missing information. (This paragraph entered into force on 1 January 2017.)

7. Simultaneously with launching the procedure, the contracting authority shall make publicly available on its homepage and in the Public Procurement Database the notice launching the procedure, the procurement documents and, without delay upon the opening of tenders, the name and address of the economic operators invited to tender and the minutes taken on the opening of tenders. (This paragraph entered into force on 1 January 2017.)

Electronic bidding

116. §

1. Public supplies may also be awarded in an electronic bidding process, at the option of the contracting authority, in accordance with the rules on open procedures at national level, with the differences laid down in this Article and in accordance with the detailed rules, which are different from those stipulated in this Act, on electronic biddings set out in a government decree. Electronic bidding means a procurement procedure in which the contracting authority conducts an electronic auction in accordance with the detailed rules laid down in Article 108 and in the relevant government decree, without requiring the submission of tenders before the auction.

2. The notice launching the procedure is not subject to Article 50(2)(n)-(p) and (r), no suitability criteria may be set by the contracting authority in the procedure and the contracting authority shall rule out the possibility of submitting variant (alternative) offers. The notice launching the procedure shall include the time limit for submission of the application for registration in the procedure. When applying accordingly the rules on open procedures, time limit for participation shall mean the time limit for submission of the application for registration in the procedure.

3. Application for registration in the procedure may be submitted, within the time limit set therefor, by economic operators who could submit a tender in an open procedure. The application for registration shall include the name, address (seat, residence) of the economic operator. The contracting authority shall send the confirmation of the acceptance or the rejection of the application for registration and the reasons therefor, not later than two business days after the submission of the application for registration, to the address given by the economic operator. It is neither possible to supply missing information nor to request the provision of information in relation to the application for registration; if an application for registration is rejected by the contracting authority, the economic operator concerned may submit a new application for registration. The rejection of the application for registration shall always be based upon objective grounds, in accordance with the principles of non-discrimination and equal opportunities, the application may be rejected in particular where the application for registration was submitted after the expiry of the time limit set therefor. Registration shall not be subject to the provision of a tender guarantee.

4. The tenderer shall have the right to modify or withdraw his tender until the closing date of the electronic bidding. The contracting authority shall be bound by the stipulations of the notice launching the procedure and the procurement documents from the date of expiry of the time limit for submission of the application for registration, while the tenderer shall be bound by his offer made in the electronic bidding from the closing date of the electronic bidding. Where the contracting authority indicated in the notice launching the procedure that tenderers would be invited to submit a professional tender following the closing date of the electronic bidding, the tenderer shall be bound by the contents of his professional tender from the time limit for the submission thereof, however, when setting the validity period, the starting date of such period shall always be based on the closing date of the electronic bidding.

5. The contracting authority, in accordance with Article 69, shall invite the tenderer or tenderers to submit the declarations specified in Article 66(4) and (6) as well as Article 67(1) and other documents, in particular the professional tender, required by an act of legislation or the notice launching the procedure, where appropriate. No reading sheet shall be submitted by the tenderers.

6. Article 68 and Article 73(1)(a) and (d) shall not apply in the procedure. The contracting authority shall declare the procedure unsuccessful, if no application for registration has been submitted. 

The application of independent procurement rules

117. §

1. The contracting authority may develop independent procedural rules not subjected to the provisions set out by Part Two of this Act.

2. The type of procedure chosen by the contracting authority may not be changed by him in the course of the procurement procedure. If the contracting authority develops independently the rules concerning the procedure to be conducted in the course of the procurement procedure, those rules shall be included in the notice launching the procedure. The notice launching the procedure shall ensure in all cases that, on the basis of it, the economic operators are able to submit appropriate tenders or requests to participate with equal opportunities.

3. The notice launching the procedure shall state all the information necessary for appropriate tendering (request to participate) by the economic operators, in particular the most important elements of the contract to be awarded (the subject-matter of the procurement, the quantity, the contract terms) and a short description of the way of awarding (award criteria and method), the time limit for submission of tenders (time limit to participate) and the information concerning the way of contacting the contracting authority. The contracting authority shall be bound to arrange for the opening of the tenders at the time and place indicated in the notice launching the procedure. The invitation shall be published by the contracting authority in a notice drawn up pursuant to the standard form specified in a separate act of legislation.

4. In the notice launching the procedure the contracting authority shall be entitled to prescribe the application of one or more ground for exclusion set out in Articles 62-63, however, grounds for exclusion other than those set out by this Act may not be prescribed. The contracting authority shall be bound to provide for the application of the grounds for exclusion specified in Article 62(1)(g)-(k) and (m). As regards suitability, the contracting authority may provide for other objective suitability criteria and way of certification than the certification of suitability criteria set out in the separate act of legislation, but the provisions set out in Article 65(3) shall be applied in such cases as well.

5. For the purposes of establishing the procedural rules according to paragraph 1, the contracting authority shall be bound to ensure the public nature of procedures to the appropriate degree, in compliance with this Act.

6. The contracting authority shall ensure the right to participate for all the economic operators established in the European Union, mutual recognition of diplomas, certificates and other evidence of formal qualifications, as well as provision of information on the time limits suitable for the submission of tenders (requests to participate), development of the regulations providing preliminary information on the applicable procedural rules and respect of the principle of non-discrimination and equal treatment when the decision closing the procedure is taken.

7. The subject-matter of the contract shall be described by the contracting authority in a non-discriminatory way. The technical specifications may not be set by the contracting authority in such a way as to exclude certain economic operators or goods from the procedure or to result in their inappropriate, discriminatory or preferential treatment. If the precise and intelligible description of the subject-matter of the public procurement justifies reference to a specific make or source, or type, or a particular process, activity, person, patent or trade mark, the specification shall state that this was justified only by the need to specify the subject-matter precisely, and such a reference shall be accompanied by the word “or equivalent”.

8. The contracting authority shall inform in writing tenderers, candidates and - before the opening of tenders - the economic operators who have expressed their interest in the procedure about all the decisions and information affecting the results of the procedure and the detailed justification thereof as soon as possible but not later than three business days after the decision. After completion of the evaluation of tenders, the contracting authority shall be bound to draw up a written summary which provides information on the evaluation of tenders and the reasons for the selection of the winning tender and to send that written summary to all tenderers at the same time, by fax or by electronic means.

9. For the purposes of establishing the individual procedural rules pursuant to paragraph 2, the contracting authority shall be bound to provide for the grounds for invalidity specified in Article 73(1) and shall be entitled to provide for the grounds for invalidity specified in Article 72(2) and (3), with the proviso that the ground for invalidity specified in Article 73(1)(c) shall only apply in case of the prescription of the ground for exclusion specified therein and Article 73(1)(d) shall only apply in case of the prescription of suitability criteria. Article 73(4) and (6) shall apply accordingly. The provisions set out in Article 75(6) shall apply. (This amendment entered into force on 1 January 2017.)

10. In the course of the procedure the provisions set out in Articles 44 and 45 shall be applied accordingly.