Közbeszerzési Hatóság

165. §

Substantial decision of the Public Procurement Arbitration Board

165. §

1. The Public Procurement Arbitration Board shall make its decision in the name of the Public Procurement Authority.

2. In its decision the Public Procurement Arbitration Board

  1. shall dismiss any unfounded applications;
  2. in procedures launched or conducted ex officio shall state the lack of infringement;
  3. shall state that an infringement has occurred;
  4. shall state that an infringement has occurred and shall apply the legal consequences listed in paragraph 3;
  5. shall, besides stating that an infringement has occurred, impose a fine in cases set out in paragraph 6;
  6. shall state that an infringement has occurred and shall prohibit the tenderer, the subcontractor or any other entity or person who or which participated in the procurement procedure from participating in the procurement procedure.

3. If the Public Procurement Arbitration Board states in its decision that an infringement has occurred, it may

  1. before the closure of the procurement procedure, call upon the person who committed the infringement to act in conformity with the rules laid down in this Act, or shall order that the contracting authority may take its decisions only subject to certain conditions;
  2. declare void any decision made by the contracting authority either during the procurement procedure or as a decision closing that procedure, provided that no contract has been concluded yet on the basis of the decision in question;
  3. order the removal of the tenderer from the official list of approved tenderers;
  4. impose a fine on any organisation or person who or which has infringed the law or on any person or organisation that is liable for the infringement and has a legal relationship with the person or organisation liable for the infringement in question.

4. The amount of the fine specified in paragraph 3(d) shall be not more than 10% of the estimated value of the procurement procedure or, in the case of the division of the contract into lots, the lot concerned by the remedy, subject to the provisions set out in paragraph 11.

5. If a preliminary dispute settlement has been requested in relation to the infringement referred to in the application and the contracting authority has sent its position on the infringement but no further measure has been taken, the amount of the fine specified in paragraph 3(d) shall be not more than 15% of the estimated value of the procurement procedure or, in the case of the division of the contract into lots, the lot concerned by the remedy, subject to the provisions set out in paragraph 11.

6. The Public Procurement Arbitration Board, besides stating that an infringement has occurred, shall impose a fine, if

  1.  the infringement has occurred with the unlawful bypass of the procurement procedure;
  2. the parties have concluded the contract with the infringement of the rules regarding the standstill period;
  3. the contract has been concluded as a result of a negotiated procedure without prior publication of a contract notice and the criteria for the application of this type of procedure were not fulfilled;
  4. the contracting authority failed to send previous notice to the Public Procurement Authority, in the case of a negotiated procedure without prior publication of a contract notice;
  5. the ex officio proceeding has been initiated by the Chairperson of the Public Procurement Authority [Article 153] and the Public Procurement Arbitration Board states that there was an infringement.

7. The amount of the fine specified in paragraph 6 shall be not more than 15% of the estimated value of the procurement procedure or, in the case of the division of the contract into lots, the lot concerned by the remedy or, in the case of the unlawful bypass of the procurement procedure, the value of the contract, subject to the provisions set out in paragraph 11.

8. According to paragraph 2(f), the Public Procurement Arbitration Board shall state that an infringement has occurred and shall prohibit the tenderer, the subcontractor or any other entity or person who or which participated in the procurement procedure from participating in the procurement procedure for a period between 6 month and 3 years, subject to the provisions set out in paragraph 11, if

  1. he has supplied false data, made false declaration in the course of the given procurement procedure or in relation thereto and is subject to the grounds for exclusion specified in Article 62(1)(i);
  2. he attempted to wrongly influence the decision making process of the contracting authority in the given procedure or attempted to obtain any confidential information which would give him an undue advantage in the procurement procedure.

9. According to paragraph 2(f), the Public Procurement Arbitration Board shall state that an infringement has occurred and, subject to the provisions set out in paragraph 11, shall prohibit the tenderer, the subcontractor or any other entity or person who or which participated in the procurement procedure from participating in the procurement procedure if, in his case, the distortion of competition arising from any conflict of interest under Article 25 or his prior involvement in the preparation of the procurement procedure may not be effectively remedied by other measures, which are less coercive than the exclusion from the procedure.

10. For the purposes of paragraph 8, the Public Procurement Arbitration Board shall prohibit the tenderer, the subcontractor or any other entity or person who or which participated in the procurement procedure from participating in the procurement procedure or concluding the contract not only for the future but also in the procurement procedure examined and in any other procurement procedure in progress, if the results have not yet been sent in the procedures concerned. In the case provided for in paragraph 9, the Public Procurement Arbitration Board may prohibit the tenderer, the subcontractor or any other entity or person who or which participated in the procurement procedure from participating in the procurement procedure or concluding the contract only in the procurement procedure examined.

11. In determining whether a fine is to be imposed, in fixing the amount of the fine and setting the period of the exclusion, the Public Procurement Arbitration Board shall take into account all the circumstances relevant in the matter, in particular the importance of the offence committed, the subject-matter and value of the public procurement concerned, the effect of the offence on the decision closing the procurement procedure, the reoccurrence, if any, of the infringement of this Act, the liable person’s readiness to cooperate in the proceedings, the length of time which elapsed between the committing of the offence and the launching of the review procedure, in the case of public procurements carried out using support the fact that, in the procedure of another authority, a sanction concerning the repayment of the support may be attached to the offence. When establishing the sum of the fine and setting the period of the exclusion, it shall also be taken into account whether the act of the offence has been manifestly deliberate.

12. If the Public Procurement Arbitration Board annuls the decision of the contracting authority having concluded the procedure, then the contracting authority shall make a new decision closing the procedure, within thirty days following the date when the decision becomes enforceable. If the procedure shall not presumably be unsuccessful, the contracting authority - before making its decision - shall obtain the statement of all tenderers having submitted valid tenders to the effect that they uphold their tenders, setting a time limit. In such cases where the tenderer has not made any statement, it shall be presumed that he does not maintain his tender. If the contracting authority made subject participation in the procedure to the condition of provision of a tender guarantee, tenderers who uphold their tenders shall certify that the tender guarantee is also upheld or is made available for the new term of the validity period set by the contracting authority.

13. If the Public Procurement Arbitration Board establishes in its decision pursuant this paragraph an infringement of the legislation applicable to public procurement or the procurement procedure, the contracting authority or the party entering into the contract as tenderer may, within thirty days from the service of the decision of the Public Procurement Arbitration Board, rescind the contract concluded pursuant to the relevant procurement procedure, provided that the infringement affected the decision concluding the procurement procedure.