Közbeszerzési Hatóság

137. §

Invalidity of the contract

137. §

1. The contract is null and void, if

  1. it was concluded unlawfully without the conduct of a procurement procedure;
  2. it was concluded as a result of a negotiated procedure without prior publication of a notice and the criteria for the application of this type of procedure were not fulfilled;
  3. the parties concluded the contract in breach of the rules regarding the standstill period [Article 80(5), Article 115(2) and 131(6)-(8)] and, as a result, deprived the tenderer of the opportunity to resort to a remedy preceding the conclusion of the contract, and at the same time they violated the rules applicable to public procurements in such a way that it influenced the prospects of the tenderer to win the procurement procedure.

2. Contrary to paragraph (1) the contract is not void, if the contracting authority did not conduct a procurement procedure with the publication of a contract notice or it concluded an agreement outside a formal procurement procedure [Articles 9-14, Articles 111] because it presumed that this Act allowed him to apply a procurement procedure without prior publication of a notice or to conclude the contract outside a formal procurement procedure, furthermore, it published a notice in accordance with the standard form provided in a separate act of legislation about its intention to conclude a contract and it concluded the contract more than ten days following the publication of the notice.

3. In the case of contracts concluded under paragraph (1), in the course of enforcing the legal consequences of invalidity, the court may declare the contract valid with retroactive effect to the date of conclusion of the contract, if overriding reasons relating to a general interest require the performance of the contract. Economic interests directly connected to the contract (in particular costs resulting from the obligations due to the delayed performance, the conduct of a new procurement procedure, the possible changes of the contracting partner or invalidity) may not be consideredoverriding reasons relating to a general interest, and any further economic interest connected to the validity of the contract may only be regarded so, if the invalidity of the contract would result in disproportionate consequences.

4. The provisions set out in this Act shall not exclude the application of Article 6:95 of the Civil Code in order to declare that the contract concluded by way of infringement of the regulations applicable to public procurements and procurement procedures is null and void. In addition to the cases stipulated in paragraph (1), the infringement of the rules (not including the provisions on the content elements of the contract) on procurement procedures shall result in the ineffectiveness of the contract, where the validity of the contract would be incompatible with the purpose and the principles of this Act, taking into account the importance and the nature of the given infringement of the rules.