Közbeszerzési Hatóság

138. §

The parties involved in the performance/delivery

138. §

1. The contract shall be performed by the party entering into the contract as the successful tenderer or joint tenderers on the basis of the procurement procedure or, if the contracting authority required or allowed setting up a business organisation [Article 35(8)-(9)], by the business organisation (hereinafter referred to as project-company) in which the winning tenderer (tenderers) or the contracting authority together with the winning tenderer (tenderers) have an exclusive share. In case of public works, the overall proportion of performance by subcontractors shall not exceed 65 % of the contract value. The proportion of participation in the performance of the contract by subcontractors shall be determined by their share in the consideration of the contract, net of value added tax. (This amendment entered into force on 1 January 2017.)

2. The party entering into the contract as tenderer shall make use, for the performance of the contract, of the organisation contributing to the certification of suitability in accordance with the commitment presented in the procedure pursuant to Article 65(7), as well as in the cases and in a way specified in Article 65(9), furthermore, he shall involve professionals presented for the certification of suitability in the performance of the contract. The tenderer may only choose not to involve those organisations or professionals in the performance or to replace them with another organisation or professional (including the cases of succession through transformation, division or merger), if the tenderer is able to meet - where, on the basis of the data presented for the given suitability criteria in the procurement procedure, the contracting authority reduced the number of economic operators participating in the procedure, the tenderer is able to meet in an equivalent manner - the same suitability criteria without that organisation or professional or with the new organisation or professional as those met by the party entering into the contract as tenderer together with the organisation or professional nominated in the procurement procedure. (This amendment entered into force on 1 January 2017.)

3. The right of the tenderer to involve subcontractors cannot be limited, except where the contracting authority made use of the possibility under Article 65(10). The winning tenderer shall be obliged to notify the contracting authority in advance, at the time of the conclusion of the contract or, as regards subcontractors involved at a later date, throughout the period of the performance of the contract, of all subcontractors who will participate in the performance of the contract and, if the given subcontractor was not nominated by him in the relevant procurement procedure, he shall also make a statement or submit the statement of the subcontractor concerned, at the time of the notification, that the subcontractor intended to be employed by him is not subject to any ground for exclusion laid down in the previous procurement procedure. (This amendment entered into force on 1 January 2017.)

4. Where, taking into account the specific characteristics of the given contract, the use of a given person (organisation) constituted a determinant factor in the evaluation of tenders, the tenderer may not take a decision not to involve in the performance that organisation or professional presented by him in the procedure. In such cases, the organisation involved may be replaced solely in cases of succession where the new organisation may be considered to be the successor of the organisation presented in the procedure as regards all the relevant circumstances taken into account in the evaluation, in the case referred to in Article 76(3)(b), as regards the staff assessed. The professional considered to be decisive in the evaluation process may only be replaced with the agreement of the contracting authority and on condition that the professional presented is equivalent to the professional assessed as regards all the relevant circumstances taken into account in the evaluation.

5. In the case of public works, the subcontractor participating in the performance of the contract shall not employ further participants to an extent exceeding 65% of the value of the subcontract. (This amendment entered into force on 1 January 2017.)