Közbeszerzési Hatóság

148. §

Review procedures

148. §

1. The Public Procurement Arbitration Board shall proceed upon application or ex officio.

2. An application may be submitted by the contracting authority, the tenderer, in the case of a joint tender any of the tenderers, the candidate, in the case of a joint request to participate any of the candidates, or any other interested party whose right or legitimate interest is being harmed or risks being harmed by an activity or default which is in conflict with this Act. Chambers or representative associations having an activity related to the subject-matter of procurement may submit an application regarding the illegal nature of the contract notice, the invitation for submission of tenders, the invitation to participate, the procurement documents or any amendment thereto or the illegal nature of the information specified in Article 113(1). (Those included in this paragraph are hereinafter jointly referred to as ‘applicant’.)

3. The application may be submitted, subject to the derogation referred to in paragraphs 4-5, within fifteen days from the date when the applicant learned of the infringement and in cases of infringing decisions closing a procurement procedure within ten days from the date when the applicant learned of the infringement. No application may be submitted more than 90 days following the occurrence of the infringement.

4. Contrary to the provision set out in paragraph 3, in the case of a procedure under Article 115, the application may be submitted within fifteen days from the date when the applicant learned of the infringement and in cases of infringing decisions closing a procurement procedure within five days from the date when the applicant learned of the infringement. No application may be submitted more than 90 days following the occurrence of the infringement.

5. The application related to the contract notice, the invitation to tender or the invitation to participate, the procurement documents or their modification may be submitted not later than five days before the expiry of the, in case modified, time limit to submit tenders or time limit to participate, however if the time limit stipulated in paragraph 3 or 4 expires later, the applicant is entitled to submit its application till the date stipulated in paragraph 3 and 4, respectively. As regards the contract notice, the invitation to tender or the invitation to participate, the procurement documents or any amendment thereto the contracting authority may submit an application regarding an infringement committed by itself, by the date of sending of the written summary concerning the tenders.

6. No separate application for review may be submitted in respect of an infringing procedural act under Article 69(4)-(7), the application related to that infringement may be included in the application for review against the unlawful decision closing the procurement procedure. The application in respect of an infringing procedural act under Article 69(4)-(7) does not constitute an element of application other than the one related to the unlawful decision closing the procurement procedure and, when calculating the time limit specified in paragraphs 3-4, the date when the applicant learned of the infringement and the date when the infringement was committed shall be the date to be taken into account in the case of the application for review against the unlawful decision closing the procurement procedure.

7. When compliance with the time limit referred to in paragraphs 3-4 is examined, the infringement shall be deemed to have become known at:

  1. the date of the publication of the notice launching the procurement procedure and the information specified in Article 113(1) with unlawful contents or the receipt of the direct invitation with unlawful contents or, in the case of procurement documents with unlawful contents the accessibility thereof;
  2. where a notice is dispatched after the expiry of the relevant time limit the fifteenth day after the publication of the notice, where a notice concerning the withdrawal of the information specified in Article 113(1) is sent to the Public Procurement Authority after the expiry of the relevant time limit the fifteenth day after the publication of the notice on the homepage of the Public Procurement Authority;
  3. in relation to the infringement in the decision closing the procurement procedure in connection with the documents reviewed the date of closing the access to documents for review, if the applicant has had access to the tender(s) at the contracting authority or the Public Procurement Arbitration Board within ten days following the receipt of the written summary;
  4. where preliminary dispute settlement has been requested in relation to the infringement referred to in the application an

    (da) the contracting authority has sent its position on time but no further measure has been made, the date of sending the position of the contracting authority;

    (db) the contracting authority failed to send its position within the relevant time limit, the date of expiry of the time limit for sending the position of the contracting authority;

  5. in the case of an amendment to or performance of a contract, which was concluded on the basis of a procurement procedure, in violation of this Act, the thirtieth day after the publication of the notice concerning the amendment of the contract or after the publication of the data concerning performance [Article 43(1)(f)] in the database maintained by the Public Procurement Authority or, if the publication in the Public Procurement Database is not possible, on the contracting authority’s homepage or on the homepage of its maintaining entity[1].

8. When compliance with the time limit referred to in paragraphs 3-4 is examined, the infringement shall be deemed to have become known at:

  1. in the case of the notice launching the procurement procedure and the information specified in Article 113(1) with unlawful contents the date of publication of the notice or information, in case of a direct invitation the date when the invitation was sent;
  2. where the notice is dispatched or the information specified in Article 113(1) is sent after the expiry of the relevant time limit the date of publication of the notice or information;
  3. in case of a procurement without the conduct of a procurement procedure the date of the conclusion of the contract, or if this date cannot be established, the commencement of its performance by either party.

9. If the applicant learned that the procurement was conducted without the conduct of a procurement procedure after the expiry of the time limit set out in paragraphs 3-4, the application may be submitted within one year following the conclusion of the contract or, if it cannot be established, following the date when any of the parties began to perform the contract.

10. Failing to meet the time limits set out in paragraphs 3 and 9 shall result in the forfeiture of rights.

11. The Public Procurement Arbitration Board shall publish without delay the designation and subject-matter of the procedure concerned by the application, the indication of the names of the parties and the date of receipt of the application on the homepage of the Public Procurement Authority following the submission of the application.

12. Prior to the submission of the application, the applicant specified in paragraph 1 shall notify the contracting authority or the procurer of this fact – by designating the infringement assumed by him – in the same way as the application was submitted by him.

 

[1] This amendment entered into force on 24 December 2015.