Közbeszerzési Hatóság

Chapter XVIII - The Rules Pertaining to Concession Award Procedures (118-128. §)

The commencement of the procedure

118. §

1. The contracting authority shall proceed as indicated in this Part of the Act in the case of works or service concessions the value of which is equal to or greater than the national threshold or, in the case of social and other services specified in Annex 3, the value of which is equal or greater than the EU threshold.

2. The publication of notices is subject to different obligations, set out in a separate act of legislation, in the case of concessions below and above EU thresholds.

3. The contracting authority shall have the freedom to organise the concession award procedure, subject to compliance with the basic principles and basic procedural rules laid down in Part One as well as in this Part of the Act.

4. The concession award procedure may consist of one or more stage(s), the contracting authority shall communicate, in the notice launching the procedure, the description of the organisation of the procedure, in the case of procedures consisting of more than one stage the objective of each stage, as well as an indicative completion deadline. Detailed information on the organisation of the procedure may also be indicated in other procurement documents and, in that context, clear information shall be provided on the point of the procedure from which tenderers are bound by the validity period. Where, in the course of the procedure, the contracting authority or contracting entity provides more precise information on the organisation of the procedure it shall notify thereof all economic operators participating in the procedure; in the event of any change in the essential information given in the notice launching the procedure or any information communicated in the procurement documents, it shall proceed according to Article 119(3). 

119. §

1. The notice launching the procedure shall be published in compliance with the separate act of legislation, except in the cases specified in Articles 128 and 129.

2. The notice launching the procedure shall contain in particular:

  1. name, address, telephone number and fax number, e-mail and (if any) website address of the contracting authority or contracting entity;
  2. contact points at which unrestricted and full direct access, free of charge is ensured or will be ensured to the procurement documents. Where, in case of certain procurement documents, direct electronic access is not available for the reasons set out in Article 39, an indication of how the procurement documents concerned can be accessed;
  3. in compliance with Article 102(1), the subject-matter and quantity of the works or service concession, by indicating an optional part, where appropriate;
  4. term of the contract or the envisaged maximum duration;
  5.  place of performance/delivery;
  6. acceptance or prohibition of the division of the concession into lots; if the division of the concession into lots is accepted, an indication whether only one, several or all of the lots may be subject to tendering and whether the number of the lots which can be awarded to the same tenderer is limited;
  7. award criteria specified in Article 125(2);
  8. grounds for exclusion to be applied in the given procedure and the required methods of certification;
  9. suitability criteria, the data needed for the assessment of suitability and the required method of certification;
  10. time limit for submission of tenders or requests to participate;
  11. address to which tenders or requests to participate shall be sent and the way of submission;
  12. language (languages) of tenders or requests to participate, an indication whether or not the tenders or the requests to participate may be submitted in another language in addition to Hungarian;
  13. date of opening the tenders and, if it is not made electronically, its place, as well as the parties authorised to be present at the opening of the tenders; in the case of an invitation to participate the date of the opening of requests to participate and, if it is not made electronically, its place;
  14. where the performance of the contract is subject to special conditions, those conditions;
  15. in the case of public procurements receiving support from the European Union, data concerning the relevant project, programme.

3. The notice launching the procedure may be modified by the contracting authority until the date on which any economic operator may be involved in the procedure. By that date a notice shall be published concerning the modification of the notice launching the procedure and, at the same time, all economic  operators who expressed their interest in the procedure to the contracting authority or contracting entity shall be notified thereof. All the economic operators participating in the procedure shall be notified at the same time of any modification of other procurement documents. In the case of modification of the notice launching the procedure and any other procurement document, sufficient time shall be ensured to allow economic operators to prepare therefor, the time limit for submission of tenders or requests to participate shall be extended, except in the case of minor modifications. Article 55(6) shall also be applied to modifications.

4. Requests for additional information and on-site inspections are subject to Article 56, with the proviso that the additional information shall be given within reasonable time after the receipt of the request, but not later than six days before the expiry of the time limit for the submission of tenders or requests to participate. (This paragraph entered into force on 1 January 2017.)

Procurement documents

120. §

1. Where the economic operators shall submit a tender in response to the notice launching the procedure, the contracting authority or contracting entity shall make available the procurement documents at the time of the publication or dispatch of the notice launching the procedure, except for the additional clarifications provided, the answers given to the questions form the economic operators in the course of the procedure. Where the notice launching the procedure does not include an invitation to tender, the procurement documents shall be made available at the time of the invitation to tender. The procurement documents specifically prepared for the submission of the request to participate shall be made available at the time of the publication or dispatch of the notice launching the procedure.

2. The contracting authority shall make available procurement documents which specify, in addition to the requirements set out in this Act, the following information:

  1. the contract terms known to him;
  2. the technical specifications concerning the subject-matter of the concession;
  3. information necessary for economic operators to prepare the tender and the request to participate as well as the list of the certificates, declarations to be submitted as part of the tender and the request to participate. The contracting authority or contracting entity shall have the right to provide for the use of the standard form of the ESPD also in concession award procedures. The use of further model forms of certificates and declarations, if any, made available by the contracting authority, may be recommended.

3. At least one tenderer, candidate or subcontractor designated in the tender or the request to participate per each tender or request to participate shall have electronic access to the procurement documents. 

The requirements concerning the subject-matter of the concession

121. §

1. Description of the works or service concession, by indicating its nature and scope, scale or indicative value, shall be given in the notice launching the procedure in such a way as to make it possible for economic operators to assess whether they intend to participate in the procedure.

2. The contracting authority shall provide economic operators with technical specifications in the procurement documents. Technical specifications are subject to Article 58(2)-(3) and the provisions set out in the separate act of legislation on the definition and contents of public procurement technical specifications, unless the relevant legislation provides otherwise.

3. Where the contracting authority conducts negotiations on the technical specifications or the contract terms or the contracting authority or contracting entity requests that economic operators submit variant offers or propose solutions for certain specific characteristics, conditions, objectives, it shall specify the minimum requirements, in particular technical, functional, legal conditions, which shall be met by all tenders.

4. Where labels or certification are required, the provisions set out in Articles 59-60 shall apply. 

The negotiation

122. §

1. Where the contracting authority conducts negotiations with the economic operators participating in the procedure, Article 88(1)-(4) and (8) shall apply accordingly, with the proviso that the minimum requirements shall mean the conditions set out in Article 121(3).

2. Article 88(6), taking into account Article 125(4), shall apply accordingly during the entire procedure until the contracting authority is not bound by the conditions set by him.

3. The contracting authority can start negotiations with the economic operators or reopen competition, if, following the evaluation of tenders, it realizes that that, considering the conditions of the most advantageous tender, the conditions set out in Article 8(7) or the condition set out in Article 133(2) would not be met. 

Submission of tenders and requests to participate

123. §

1. As required by the organisation of the procedure, tenders or requests to participate - the latter may not include a tender and shall have the contents determined by the contracting authority - shall be submitted, according to the requirements set by the contracting authority or contracting entity, in response to the notice launching the procedure.

2. Economic operators shall, in all cases, be allowed a sufficient period of time to submit their request to participate and tender. The time limit for the submission of tenders or requests to participate to be submitted in response to the notice launching the procedure may not be shorter than thirty days following the dispatch of the notice launching the procedure. Where the procedure consists of several stages and a request to participate had to be submitted in response to the notice launching the procedure, the time limit for the submission of the first tenders at a later stage of the procedure may not be shorter than twenty-two days following the sending of the invitation to tender. If, in concession award procedures, tenders may also be submitted by electronic means, the time limit for the submission of tenders may be reduced by five days. (This amendment entered into force on 1 January 2017.)

3. As regards requests to participate, the first offer requested from tenderers and the final tender - which is evaluated before the decision closing the procedure is taken - submitted in concession award procedures, the provisions set out in Article 68 shall apply, the contracting authority shall provide for the reading sheet, having the contents as required therein, to be annexed to the request to participate or the tender.

4. The contracting authority may prescribe in the procurement documents that the following information shall be indicated in the tender or in the request to participate:

  1. those part (parts) of the concession for the performance of which the tenderer (candidate) intends to employ a subcontractor,
  2. the subcontractors intended to be employed in those parts, if they are already known at the time of the submission of the tender or the request to participate.

5. The contracting authority shall indicate in the invitation to tender or participate what is covered by the possibility of the supply of missing information. 

Suitability criteria and grounds for exclusion

124. §

1. In the notice launching the procedure, the contracting authority shall establish suitability criteria concerning the technical-professional ability as well as the economic-financial standing of candidates or tenderers. The suitability criteria and the documents to be submitted for the verification of compliance therewith shall be accurately indicated in the notice launching the procedure. In doing so, the contracting authority shall specify those situations which rule out suitability of the tenderer or the candidate for the performance of the contract in case of their presence or absence or the level of their insufficiency which rules out such suitability.

2. As regards suitability criteria, Article 65(3), (6)-(8) and (11) as well as (9) shall apply in concession award procedures, taking also into account that the contracting authority may prescribe suitability criteria other than those applicable in case of public procurements according to a separate act of legislation, on condition that such criteria are based on objective requirements.

3. Where the tenderer or the candidate fulfils the suitability criteria by relying on the capacities of another entity, the entity in question shall certify by the same means as the ones prescribed for the tenderer or the candidate that it is able to fulfil the suitability criteria set. In concession award procedures, there shall be no requirement for the implementation of a specific part of the contract by the tenderer in person.

4. Articles 62-64 shall also apply in concession award procedures. The ground for exclusion, specified in Article 62(1)(i), concerning the failure to submit the certificates supporting the declaration included in the ESPD shall apply, if the contracting authority prescribes the use of the ESPD for the preliminary certification of the non-existence of the grounds for exclusion in the concession award procedure.

5. Where the subcontractor or the organization involved in the certification of suitability is subject to any ground for exclusion, Article 71(4) shall apply. 

Award criteria

125. §

1. For the purposes of selecting the winning tenderer objective award criteria shall be applied. For the purposes of establishing the award criteria, Article 76(1)-(8) and (11) as well as (13) shall apply, save that the subcriteria to be evaluated in the framework of the award criteria shall only be indicated in decreasing order of importance, instead of their weighting.

2. In the notice launching the procedure, the award criteria shall only be indicated in decreasing order of importance; their weighting and the other information specified in Article 76(9) as well as the description of the method used for the evaluation shall be included in the procurement documents.

3. Where a life-cycle costing approach is used, Article 78 shall also apply.

4. If a tender submitted in the procedure offers an innovative solution which is able to deliver an outstanding functional performance and such solution could not have been foreseen by a contracting authority acting with due care, the contracting authority may exceptionally modify the weighting of the award criteria, without prejudice to the order of importance indicated in the notice launching the procedure, or the order of importance of the subcriteria given in the framework of the award criteria. In such cases the contracting authority or contracting entity shall notify all tenderers of the modification and send a new invitation to tender, taking into account the minimum time limit of twenty-two days for the submission of tenders set out in Article 123(2). The contracting authority may only make use of the option provided for in this paragraph, if the procedure consists of several stages, no tender had to be submitted in response to the notice launching the procedure and the invitation to tender was only sent at a later stage of the procedure to the candidates who had been qualified as suitable, furthermore, at the time of the publication of the notice launching the procedure the economic operators could only be aware of the award criteria and the order of importance thereof. 

The evaluation of tenders and requests to participate

126. §

1. In the course of evaluating tenders and requests to participate, the contracting authority shall examine whether the tenders and requests to participate are in compliance with the conditions set in the procurement documents and by law.

2. The contracting authority or contracting entity shall determine which tenders or requests to participate are invalid and whether there are any economic operators to be disqualified from the procedure. If the contracting authority did not requested the supply of missing information from the economic operator, the tender or request to participate concerned cannot be considered invalid for a reason that could have been remedied by a supply of missing information.

3. The winning tenderer shall be a tenderer who fulfils the following conditions:

  1. whose tender is in compliance with the conditions set in the procurement documents and by law,
  2. who meets the suitability criteria prescribed in the procedure and
  3. who is not subject to any ground for exclusion.

4. Article 73(1) and (4)-(6) as well as Article 74 shall apply to the invalidity of the requests to participate or tenders, furthermore, the grounds for invalidity set out in Article 73(2) and (3) may also be applied by the contracting authority or contracting entity.

5. The procedure shall be deemed to be invalid in the case pursuant to Article 75(1) as well as in the cases specified by the contracting authority or contracting entity in the notice launching the procedure. Where the contracting authority or contracting entity specifies situations in which the procedure may be declared invalid, it shall also lay down the objective criteria on the basis of which the decision on invalidity will be taken.

6. In addition to the provisions laid down in paragraph 5, the procedure shall be declared invalid, if, following the evaluation, it can be established that, on the basis of the tender considered to be the most favourable tender according to the award criteria, the value of the concession is higher than the estimated value and the publication at EU level specified in a separate act of legislation should have been made instead of the publication at national level, had the former value been considered to be the estimated value at the time of the starting of the procedure.

7. In addition to the provisions laid down in paragraph 5, the procedure shall be declared invalid, if it can be established that, considering the conditions of the most favourable tender according to the award criteria, the conditions set out in Article 8(7) or the condition set out in Article 133(2) would not be met. 

127. §

1. The contracting authority shall inform all tenderers or the candidates or, before the opening of tenders, the economic operators who expressed their interest in the procedure in writing (by fax or electronic means) of the results of the procedure, the lack of success of the procedure, the classification of a tender or request to participate as invalid, the exclusion of an economic operator as well as of the relevant reasons thereof in detail, as soon as possible after the decision to this effect, but within three business days at the latest. After completion of the evaluation of tenders, the contracting authority or contracting entity 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, the possibility of judicial remedy and the duration of the standstill period and it shall send that written summary to all tenderers at the same time, by fax or by electronic means.

2. Where the decision of the contracting authority or contracting entity was unlawful and a modification provides legal remedy thereto, it shall notify, by fax or electronic means, without delay, tenderers or candidates of that modification - which may be made as a result of the notification sent by an economic operator - of its decision specified in paragraph 1. The contracting authority or contracting entity shall have the right to take the necessary measures to restore legality of the procedure, taking into account the basic principles laid down in Article 2(1)-(3). The contracting authority or contracting entity may, if necessary, rescind the contract which was already concluded or, where the initial situation cannot be restored because the performance/delivery has already been started, terminate the contract with immediate effect.

3. According to paragraph 2, the contracting authority or contracting entity shall inform tenderers or candidates, even if only a clerical error shall be corrected, which has no impact on the legality of the procedure.

4. Upon request by a tenderer submitting an admissible tender, after sending the results of the procedure, the contracting authority or contracting entity shall provide specific information regarding the features of the winning tender and its advantages over the tender submitted by that tenderer within five business days from receiving the request, taking into consideration the winning tenderer’s interests regarding business secrecy. 

Concession award procedures without prior publication of a notice

128. §

1. Contrary to the provision set out in paragraph 2, instead of being published, the notice launching the procedure shall be sent directly, at the same time to all the economic operators concerned, in the following cases:

  1. in the case specified in Article 98(2)(c) and (d),
  2. if the concession award procedure with the publication of a notice 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 concession have not been altered substantially; the contracting authority or contracting entity shall, upon request, inform the European Commission through 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 or contracting entity, 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).

2. In concession award procedures without prior publication of a notice, tenders or requests to participate may only be submitted by the economic operators invited to do so. The economic operators invited to tender or participate may not submit a joint tender or joint request to participate, however, nothing prevents any economic operator invited to tender or participate from submitting a joint tender or joint request to participate with any other economic operator not invited by the contracting authority or contracting entity.

3. In the case specified in Article 1(b), the notice launching the procedure shall be sent to at least three economic operators, which are able to comply with the suitability criteria for the performance of the contract, in the opinion of the contracting authority or contracting entity.

4. The economic operators participating in the procedure shall be directly notified of any changes made to the procurement documents. In the course of the procedure, the subject-matter or terms of the contract may not be modified to such an extent that would have not allowed the application of a concession award procedure without prior publication of a notice.

5. The minimum time limits specified in Article 123(2) shall not apply to the time limit for submission and the time limits shall be set in such a way as to allow economic operators a sufficient period of time to submit their request to participate or tender.

6. In the case set out in Article 1(a) the final offer may also be made orally at the negotiation and shall be duly documented by the contracting authority or contracting entity.