Közbeszerzési Hatóság

135. §

Specific provisions pertaining to the performance of the contract

135. §

1. The party entering into the contract as contracting authority shall make a written declaration on the acknowledgement of the performance of the contract (receipt of performance) or the refusal of such acknowledgement within 15 days from the date of the performance by the party entering into the contract as tenderer or the receipt of the written notification thereof.

2. In case of construction contracts concluded for the carrying out of public works, if the delivery procedure is not started by the contracting authority upon the written notice (completion notice) of the party entering into the contract as tenderer within 15 days following the deadline defined in the contract as the deadline for starting the delivery procedure, or if it is started but, in light of Article 6:247 (2) of the Civil Code, not completed by the deadline defined in the contract, the party entering into the contract as contracting authority shall issue a receipt of performance upon the request of the party entering into the contract as tenderer.

3. In case of public works, specific rules - other than those set out in Article 6:130 (1)-(3) of the Civil Code - may be laid down in a Gov. Decree on the payment of the consideration stipulated by the contract. (This amendment entered into force on 1 January 2017.)

4. In case of public contracts carried out using subsidies, for the payment of suppliers, the entity obliged to make payment shall do so according to the rules to which the party entering into the contract as the contracting authority is subject, i.e. according to the rules set out in Article 6:130 (1)-(3) of the Civil Code, paragraph 3 herein or the government decree drawn up on the basis of the empowerment of this Act, respectively.

5. The parties may also agree on payment in instalments, provided that the chosen type of contract actually justifies it. In such cases each instalment shall be subject to the provisions on payments set out by this Act or the relevant Gov. Decree.

6. Only the overdue claims of the same kind, acknowledged by the entitled party may be set off by the contracting authority against its debts arising from the consideration based on the contract.

7. Where the subject-matter of the public contract consists of public works and the time limit for the performance of the contract exceeds two months, the contracting authority shall make available an advance of 5% of the full amount of the consideration, exclusive of the reserve fund and net of value added tax, provided for in the contract, but not more than HUF 75 million. The contracting authority may not make the payment of that mandatory advance subject to the provision of a guarantee by the contracting party.

8. In the contract, the parties have the right to provide for the payment of an advance the amount of which exceeds the obligatory amount set in paragraph 7, and have the right to provide for the payment of an advance in any other case as well. A separate act of legislation may requirethe payment of an advance in the amount exceeding that of set in paragraph 7 and in any other case as well, furthermore, such legislation may also request the payment of an advance exceeding the amount specified in paragraph 7, without requesting a guarantee. (This amendment entered into force on 1 January 2017.)

9. Contrary to paragraph 7, in case of public contracts carried out using subsidies, the contracting authority shall make available, for the payment of suppliers, an advance of 30% of the eligible amount of the contract - exclusive of the reserve fund and net of value added tax -, unless a separate act of legislation prescribes the payment of a suppliers’ advance in a higher amount. In this case the amount of the guarantee required by the contracting authority shall not exceed the difference between 10% of the eligible amount of the contract, exclusive of the reserve fund and net of value added tax, and the advance requested by the supplier. (This amendment entered into force on 1 January 2017.)

10. The stipulations set out in paragraphs 1-3 and 6-7 as well as 9 shall form part of the contract even if the parties did not agree on this matter or the parties have agreed otherwise, excluding in the latter case the provision set out in paragraph 8.

11. Any provision of a contract concluded pursuant to a procurement procedure shall be considered null and void should it exclude or restrict the application of legal consequences stipulated to a breach of contract perpetrated by the contracting authority except for the case set out in Article 6:155 (4) of the Civil Code concerning the interest on late payment.

12. In case of conditional public procurements, the condition to which the contracting authority subjected the effectiveness of the public procurement and which was indicated in the notice launching the procedure, may be stipulated by the contracting authority as a condition suspending the entering into force of the contract being concluded as a result of the procurement procedure.