Közbeszerzési Hatóság

142. §

Compliance with the principle of responsible management of public finances in the course of the performance of contracts

142. §

1. The data concerning the performance of the contract shall be documented by the contracting authority and this includes the obligation to control and document the performance of contractual obligations which were taken into account in the course of the assessment process in the procurement procedure as well as all the performances which do not comply with the contract terms, the reasons therefor and, where appropriate, the enforcement of claims related to the breach of contract.

2. When failing to enforce claims arising from a breach of contract (not including the exercise of the right of rescission or termination), the party entering into the contract as contracting authority violates the principles laid down in Article 2(1)-(4), if

  1. the breach of contract is the result of non-compliance with an obligation which was taken into account by the contracting authority in the course of the assessment of tenders in the procurement procedure; or
  2. as a result of the breach of contract, the performance deviates from the contents of the contract to such an extent that it would constitute a substantial modification according to 141(6), had the parties modified their contract to that effect.

3. Any modification of the contract which is aimed at exempting the party entering into the contract as successful tenderer from a breach of contract (or attempted breach of contract) for which he is responsible (or he would be responsible) and the legal consequences thereof (not including the exercise of the right of rescission or termination) or which is aimed at transferring extra costs of work from the successful tenderer to the contracting authority or transferring without reason to the contracting authority other risks to be incurred by the successful tenderer according to the contract, shall be null and void.

4. The Public Procurement Authority shall be entitled to verify, according to Article 187(2)(j), compliance with the requirements set out in this Act concerning the modification and the performance of contracts and, in the event of violation of those requirements, initiate the proceeding of the Public Procurement Arbitration Board or the competent court [Article 153(1)(c), Article 175].

5. If the party entering into the contract as successful tenderer has been found in serious breach of his contractual obligations and the breach of contract resulted in the termination or rescission of the contract, a compensation claim or any other legal consequences applicable on the basis of the contract, furthermore, if the wrongful conduct of the party entering into the contract as successful tenderer resulted in, partly or fully, the impossibility of the contract, the contracting authority shall notify the Public Procurement Authority thereof. The notification shall include the description of the breach of contract, the legal consequence applied and whether or not the contracting party admitted breaching the contract, whether or not an action was filed in relation thereto.

6. Where the party entering into the contract as successful tenderer has been found in breach of his contractual obligations and this fact was established by final court ruling, the contracting authority shall notify the Public Procurement Authority of that breach of contract, its description, substantial characteristics, including, where appropriate, that the breach of contract resulted in the termination or rescission of the contract, a compensation claim or any other sanction applicable on the basis of the contract and that the wrongful conduct of the party entering into the contract as successful tenderer resulted in, partly or fully, the impossibility of the contract.