Közbeszerzési Hatóság

Chapter XXIII - The Public Procurement Authority (179-191. §)

179. §

1.  For purposes of enforcing the objectives set out in this Act, a Public Procurement Authority (hereinafter referred to as ’Authority‘) shall operate, as subordinated to Parliament only.

2.  The Authority is a central budgetary organ operating as an autonomous state administration organ subordinated to Parliament, with general competence within its scope of responsibilities as laid down in this Act, it has jurisdiction over the entire territory of Hungary. Its seat shall be in Budapest.

3.  The Authority‘s budget shall be planned as a specific budget title under budget heading ‘National Assembly’ of the Act on the central budget. Any regroupings against this appropriation for the Authority during the year shall be subject to approval by Parliament.

4. Within the framework of the Authority, a Council shall operate (hereinafter referred to as the ‘Council’) as well as the Public Procurement Arbitration Board (hereinafter referred to as the ‘Arbitration Board). 

The President of the Authority

180. §

1.  The president of the Authority shall

  1. represent the Authority and the Council;
  2. if invited, attend sessions of Parliament and of its committees, and present the Authority‘s annual report;
  3. issue a president‘s briefing on practical information related to procurement procedures;
  4. initiate a direct voting, in periods between council sessions, in accordance with the provisions of the organisational and operational regulations of the Authority, in order to make decisions on matters falling within the Authority’s competence and allowing of no delay;
  5. exercise employer‘s rights over the secretary-general of the Authority (hereinafter referred to as ’secretary-general‘), the employees of the Secretariat of the Authority and the Chairperson, deputy Chairperson and public procurement commissioners of the Arbitration Board;
  6. perform other responsibilities designated to it by law.

2.  The Vice-President shall have full powers to substitute for the President of the Authority in the absence of the latter. 

181. §

1.  The Council shall decide on the appointment of the President of the Authority for five years with a two-thirds majority of members present. The appointment shall be renewable on one occasion.

2.  The Act on Civil Servants (hereinafter referred to as ’ACS‘) shall be applicable to the President of the Authority with the derogations set out in this Act.

3.  The President of the Authority shall be entitled to a monthly salary - established for the period from 1 March of the current year to the end of February of the following year -, which shall be eight times of the average gross monthly earnings – officially published by the Hungarian Central Statistical Office -, for the year preceding the current year. Furthermore, the President of the Authority shall be entitled to other benefits as due to ministers. (This amendment entered into force on 1 January 2017.)

4.  The Council shall exercise employer rights over the President of the Authority, and the President shall make the statement of his incompatibility to the Council.

5.  The Council shall elect the Vice-President of the Authority for five years from among the members with a two-third majority of the members present.

6.  The term of office of the President, Vice-President of the Authority and members of the Council shall end in the event of

  1. the expiry of the term;
  2. recalling;
  3. resignation;
  4. the occurrence of circumstances as set out in Article 182(8);
  5. becoming undeserving or permanently unsuitable for the office;
  6. death;
  7. establishment of incompatibility.

7.  In cases within the meaning of paragraph 6 (e) and (g) the Council shall state the termination of the term of office with the vote of two thirds of the members present and with attention to the opinion of the bodies or persons designating the person in question.

8.  In case the Authority does not decide on the appointment of the new president of the Council until the expiry of the term of office of the president, the term of office of the president shall extend until the end of the calendar year.

The Council operating within the framework of the Authority

182. §

1. The Council shall have thirteen members. Specific objectives in the public interest, contracting authorities and tenderers shall be each represented by the members of the Council. (This amendment entered into force on 1 January 2017.)

 

2.  The enforcement of the principles of this Act, specific objectives in the public interest, the interests of contracting authorities and of tenderers shall be the responsibility of the following persons in the Council:

  1. the person designated by the Minister competent in economic policy;
  2. the person designated by the Minister competent in public procurements;
  3. the person designated by the Minister competent in building matters;
  4. the person designated by the Minister competent in public funds;
  5. the President of the Hungarian Competition Authority or the person designated by him;
  6. the President of the Government Control Office or the person designated by him;
  7. the person designated jointly by the national associations of local governments;
  8. the three persons designated by the national employers‘ interest representation bodies and the national economic chambers, including the Hungarian Chamber of Agriculture, Food Economy and Rural Development;
  9. the person designated jointly by the Hungarian Chamber of Engineers and the Chamber of Hungarian Architects;
  10. the person designated by the professional body of the accredited public procurement consultants. (This amendment entered into force on 1 January 2017.)

3.  The president of the Council is the president of the Authority. The vice-president of the Council is the vice-president of the Authority.

4. The president of the Council shall become a member of the Council even if he was not designated from among the members. Where the president of the Council was selected from among members of the Council, the president shall discontinue representing the general objectives or interests of the person designating him, and the person designating him shall be entitled to designate a new member to the Council. The designating person shall not exercise against the president of the Council their right as laid down in Article 181(6)(b) and (7).

5.  The Council member shall report to the person designating him on his activities within the Council for the achievement of objectives he has to enforce, the general interests he represents, and also the objectives of this Act, as well as the enforcement of these in the field of public procurement. 

6.  The president, the vice-president and the members of the Council shall be obliged to make a declaration of property according to the rules regarding the members of Parliament, for the first time within thirty days from their designation. As regards the registration, control and filing of declarations of property the rules applicable to the registration, control and filing of declarations of property of members of Parliament shall be applied.

7. If the president, the vice-president or the member of the Council refuse their obligation to make a declaration of property, neglect to fulfil their obligation or declare false data, fact in their declaration of property, their term of office shall be terminated due to incompatibility.

8. The following persons shall not be eligible for membership in the Council:

  1. members of Parliament, spokespersons of nationalities;
  2. have previous convictions under criminal law.

9. The term of office of members shall be two years at least.

10. The rules, except as laid down in paragraphs 7-9, for designating and recalling members shall be set by the designating bodies in such a way as to guarantee the sustained operability of the Council.

11. Members shall be required to perform their designated tasks in person. The members shall be entitled to an honorarium, the monthly rate of which shall be determined in the organisational and operational regulations of the Authority. (This amendment entered into force on 1 January 2017.)

183. §

The Council shall

  1. establish the headcount of the Public Procurement Arbitration Board;
  2. appoint or recall the Chairperson and deputy Chairperson of the Public Procurement Arbitration Board and the public procurement commissioners; judge cases of incompatibility related to public procurement commissioners;
  3. consulting with the minister competent in public procurements and, where appropriate, in collaboration with the national economic chambers and other trade organisations, prepare guidelines with the aim of facilitating the application of the regulations applicable to public procurements based on the experiences acquired from the decisions of review procedures and the control of public contracts in practice and concerning practical information on public procurement (in particular on the issues provided for in this Act);
  4. perform other responsibilities designated to it by law.
184. §

1. The Council shall convene its sessions as required, but at least on ten occasions every year. (This amendment entered into force on 1 January 2017.)

2. The Council shall have a quorum if two thirds of its members are present.

3. The Council shall make decisions with a simple majority vote, with the exceptions within the meaning of this Act.

4. Members of the Council who are relatives living in the same household as the persons affected in the matter may not participate in the preparation and passing of the decision of the Council on the subject of Article 183(b)[1].

5. Members of the Council shall be required to notify to the president if they are or have become subject to reasons for incompatibility within the meaning of paragraph 4 and shall be required to discontinue their participation in the ongoing procedure.


[1] This amendment entered into force on 12 December 2015.

The Secretariat of the Authority

185. §

1.  The coordination of the activities of the Authority and the Council, the preparation and implementation of its decisions, and the data collection, recording and administration activities required for the same shall be the responsibility of the Authority‘s Secretariat. The Secretariat shall be headed by the secretary-general.

2.  The secretary-general and employees of the Secretariat shall be in a civil servant relationship with the Authority, for which the ACS shall apply.  The secretary-general shall be entitled to salary and other benefits as due to deputy state secretaries. 

186. §

The president, vice-president of the Authority and members of the Council, the secretary-general, the employees of the Secretariat and the public procurement commissioners or persons having held such positions or conducted such activities, shall handle as confidential all qualified data and business secrets disclosed to them in the course of discharging their responsibilities.

Responsibilities and competence of the Authority

187. §

1.  The Authority shall be responsible for effectively contributing to framing the public procurement policy and for forming and spreading the lawful public procurement behaviour enhancing the public and transparent spending of public funds while taking into account the public interest and the interest of contracting authorities and tenderers.

2. The Authority shall

  1. manage, update and publish on its homepage

    (aa) the list of the contracting authorities falling under the scope of the legislation,

    (ab) the official list of approved tenderers, established by the Authority,

    (ac) the No° and date of the decisions of the Arbitration Board and the judicial decisions justifying the exclusion under Article 62(1)(h), furthermore, without considering the gravity of the infringement, the No° and date of all decisions of the Arbitration Board or, in case of a review thereof, final and binding judicial decisions justifying the exclusion under Article 62(1)(q); (This amendment entered into force on 1 January 2017.)

    (ad) the list of tenderers excluded from participation in procurement procedures, which list shall include the term of such exclusion as well,

    (ae) where an economic operator has been found in breach of its contractual obligations assumed by it in the procurement procedure and this fact was established by final court ruling or admitted by the economic operator, reference to the 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, noting that those data shall be made available on the homepage for a period of three years from the breach of contract,

    (af) the final decisions establishing that the economic operator subject to a ground for exclusion is reliable [Article 188(4)],

    (ag) the list of sheltered places of employment, including the products manufactured or distributed, services provided by those places of employment;

  2. keep a registry of public procurements;
  3. assess the adequacy of conditions for being included as approved tenderer in the list drawn up by the economic or professional chamber, as well as register the list;
  4. send the missing statistical data to the European Commission, at the request of the Commission, send the information specified by this Act to the European Commission;
  5. by 1 March 2017 for the first time and every three years thereafter, draw up a statistical report on public contracts below EU thresholds, in particular on the total, aggregate estimated value of such public contracts during the period concerned, and dispatch the report to the minister responsible for public procurements, within a reasonable period;
  6. make arrangements for editing the Public Procurement Bulletin, which is the Official Journal of the Public Procurement Authority (hereinafter referred to as ‘Public Procurement Bulletin‘ and for publishing and examining notices related to the contract award and design contest procedures. ensure completeness of data in the course of the control of notices and, in that context, may call upon the contracting authority to supply information. ensure publication of the information referred to in Article 113(1) on its homepage, furthermore, publication of other data and information stipulated by this Act on its homepage or in the Public Procurement Bulletin;
  7. publish on its homepage, at the time of their receipt, the data of the application initiating the procedure of the Arbitration Board and of the ex-officio initiation of the procedure, the substantial decision of the Arbitration Board and the decision closing the public procurement case, furthermore, in case of the judicial review of the decision, the decision of the court;
  8. set up and operate and publish on its homepage the public database of the decisions of review procedures, in which it ensures a free, full, electronic access for anybody to the decisions of the Arbitration Board and the court with the possibility of a keyword search;
  9. publish on its homepage the guideline or communication specified in paragraph 10, Article 183(c) and Article 194(3);
  10. monitor any amendment to the contracts concluded pursuant to procurement procedures and supervise their performance according to the AP in the framework of an official control according to the detailed rules set out in a separate act of legislation and, in particular, take the measures specified in Article 153(1)(c) and Article 175;
  11. maintain the Public Procurement Database, which is the central register of procurement procedures, promote public access to public procurement information, the spread of the use of electronic public procurement databases, furthermore the support of electronic administration and communication possibilities;  and within the framework of the aforementioned it shall ensure the possibility of an electronic publication, where the contracting authority may make available the procurement documents in a centralized manner, without any charge, in full, directly by electronic means for the tenderers, and where the tenderers may have access to procurement documents without any charge;
  12. organize conferences in order to improve the knowledge of public procurement rules;
  13. express opinions on issues of interpretation in matters of principle in cooperation with the minister responsible for public procurements - if necessary - in order to help contracting authorities in the course of the preparation and conduct of procurement procedures;
  14. in the framework of relations with the public procurement organisations of other EU Member States, provide information - concerning in particular the certificates to be used in procurement procedures, the publicly available Hungarian databases, registers -, ensure publication of the list of relevant registers in e-Certis and, in particular, fulfil the obligations pursuant to Articles 44(3), 59(6), 60(5), 61(1), 62(3), 64(1) and (8) as well as Article 69(5) of Directive 2014/24/EU, furthermore, the obligations pursuant to Articles 62(3), 81(3), 84(5) as well as Article 86(1) and (4) of Directive 2014/25/EU; (This amendment entered into force on 1 January 2017.)

  15. monitor the enforcement of the rules stipulated in this Act, and initiate with competent persons the making or amendment to legislation related to public procurement;
  16. review draft legislation and legislation concepts related to public procurement and the operation of the Council;
  17. renew permanently, maintain and publish on its homepage the wages usual or determined in the different sectors and the related common charges, on the basis of the collected data made available each year by the Minister responsible for Employment Policy;
  18. determine the approval criteria and the methods of certification in relation to the official list of approved tenderers, established by the Authority;
  19. collect statistical data on procurement procedures, enabling it to prepare price statistics which shall be published on its homepage on a regular basis;
  20. prepare the organisational and operating regulations of the Authority and other internal regulations relating to the Authority’s operations, furthermore, its draft budget and annual budget report and approve the organisational and operating regulations of the Public Procurement Arbitration Board;
  21. publish on its homepage the data - specified in the ministerial decree on the activity of accredited public procurement consultants – concerning the accredited public procurement consultants who are registered by the minister competent in public procurements; (This amendment entered into force on 1 January 2017.)

  22. perform other responsibilities designated to it by law.

3. Upon invitation by the president of the Authority or a public procurement commissioner, all entities shall be required to give information on matters related to public procurement within ten days, including trade organisations and representative organisations.

4. Each year, the Authority shall prepare a report to the Parliament on its activity, on its experience on the fairness and transparency of public procurement processes, and on the experience of review procedures. The report shall make statements regarding the tendency of the number and value of procurement procedures, and the economic situation of national tenderers, including micro, small and medium size enterprises. For information, the Authority shall send the report to the State Audit Office as well.

5. For the purposes of the official list of the approved tenderers, the Authority, the economic and professional chamber are entitled to manage data concerning identity, as well as skills, qualifications and professional experience of the persons designated by the applicant.

6. This paragraph was repealed on 1 January 2017.

7. This paragraph was repealed on 1 January 2017.

8. This paragraph was repealed on 1 January 2017.

9. This paragraph was repealed on 1 January 2017.

10. Guidelines shall be issued by the Authority - in cooperation with the minister competent in foreign policy - concerning the international agreements related to public procurements, as well as concerning countries which have an agreement on avoidance of double taxation with Hungary.

11. A person whose personal or pecuniary interest is linked to any of the entities concerned by the procedure to be carried out by the Authority according to paragraph (2)(ab) may not participate in the implementation or preparation thereof. The person concerned by that conflict of interest shall notify the President of the Authority without delay thereof and cease immediately to participate in the ongoing procedure or in the preparation of the procedure. No appeal shall lie from the decision and decree of the Authority delivered within its scope of duties, unless otherwise provided by this Act. The judicial review of the decision may be requested from the court by the applicant, i.e. the approved tenderer concerned not later than fifteen days after receipt of the decision. The administrative and labour court shall take its decision in a non-litigious procedure, no later than sixty days after submission of the request, it may reverse the decision of the Public Procurement Authority. No appeal and review shall lie from the court’s decree. Chapter XX of the CP shall apply accordingly to the proceedings of the court, unless other provisions of this Act specify otherwise or the nature of the non-litigious procedure clearly indicates otherwise. (This amendment entered into force on 1 January 2017.)

188. §

1. Any economic operator who is subject to a ground for exclusion other than those referred to in Article 62(1)(b) and (f) may lodge an application with the Authority to establish that the measures taken by it are sufficient to demonstrate its reliability despite the existence of a relevant ground for exclusion. The evidence of the measures taken shall be submitted to the Public Procurement Authority, together with the relevant application.

2. In order to demonstrate its reliability, the economic operator subject to a ground for exclusion shall prove that

  1. it has paid or undertaken to pay compensation in an amount as agreed with the injured party, within a specified period, in respect of any damage caused by the criminal offence, misconduct or other infringement;
  2. it has clarified the facts and circumstances in a comprehensive manner by actively collaborating with the competent authorities; and
  3. it has taken concrete technical, organisational and personnel measures that are appropriate to prevent further criminal offences, misconduct or other infringement.

3. The measures referred to in paragraph 2 shall be evaluated by the Authority taking into account the gravity and particular circumstances of the criminal offence, misconduct or other infringement.

4. The Authority shall assess, in its decision to be taken within fifteen days following receipt of the application, whether the measures taken by the economic operator are appropriate. In duly justified cases the time limit may be extended on one occasion by not more than fifteen business days and the applicant economic operator shall be notified at the same time thereof. The Authority may call upon the applicant economic operator to make further statements, attach further evidence, documents, allowing an appropriate period. The Authority shall send in writing, without delay, a statement of the reasons for its decision to the economic operator. The decision establishing that the economic operator subject to a ground for exclusion is reliable may not include any condition or requirement of further measures to be taken by the economic operator. Where the application is rejected by the Authority - or, in the case of its judicial review, by the court -, the economic operator subject to the given ground for exclusion may submit another application, according to paragraph 1, in relation to the same ground for exclusion, only if it intends to demonstrate its reliability by reference to a measure taken subsequent to the rejection of its previous application.

5. The judicial review of the decision rejecting the application according to paragraph 4 may be requested by the applicant from the court, within fifteen days following receipt of the decision. The administrative and labour court shall take its decision in a non-litigious procedure, no later than sixty days after submission of the request, it may reverse the decision of the Public Procurement Authority. No appeal or judicial review shall lie from the Court‘s relevant decree. Chapter XX of the CP shall apply accordingly to the proceedings of the court, unless other provisions of this Act specify otherwise or the nature of the non-litigious procedure clearly indicates otherwise.

6. A person whose right or legitimate interest is directly affected by the case or who cannot be expected to assess the case objectively may not be involved in the examination of the application referred to in paragraph 1. When establishing whether a conflict of interest arises in the case of persons involved in the examination of the application according to paragraph 1, Article 147(1)-(2) shall apply accordingly, with the proviso that the client organisation referred to therein shall mean applicant, the public procurement case shall mean the examination of the application, the commencement of the review procedure shall mean the date of submission of the application. The person who is subject to the ground for conflict of interest referred to in this paragraph shall notify the President of the Authority without delay thereof and cease immediately to participate in the ongoing procedure or in the preparation of the procedure.

189. §

1. Where the President of the Authority finds upon the examination of the documents sent to the Authority in relation to the launch of a negotiated procedure without a notice that there is a well-founded supposition of a breach of the rules and fundamental principles set out for public procurement and for procurement procedures, he shall initiate the ex officio procedure of the Public Procurement Arbitration Board, not later than ten business days counted from the receipt of such documents. When lodging the initiation, the President of the Authority shall notify the contracting authority thereof, by indicating the alleged infringement. (This amendment entered into force on 1 january 2017.)

2. Where compliance with the requirements concerning the applicability of the negotiated procedure without prior publication of a contract notice or the lawfulness of the invitation to tender may not be clearly established on the basis of the documents supplied by the contracting authority, the President of the Authority shall call upon the contracting authority to supply the necessary information within three days by fax or by electronic means.

3. Should the contracting authority fail to produce the missing information, the President of the Authority shall decide about the initiation of the proceeding on the basis of the information already available.

190. §

For the purposes of publication of the decisions of the Arbitration Board and the decisions delivered in the judicial review of the procurement procedures, the provisions set out in Chapter XII of the Act CLXI of 2011 on the Organisation and Administration of the Courts (hereinafter referred to as ‘OAC’) shall be applied with the following differences:

  1. contrary to the provisions laid down by Article 163(1) of the OAC, it is incumbent on the Public Procurement Authority to publish the court rulings delivered in the procurement procedure and the Reports on the Decisions of the Public Procurement Arbitration Board,
  2. it is incumbent on the Public Procurement Arbitration Board to make anonymous digital copies according to Article 163(3) of the OAC in relation to the decisions of the Public Procurement Arbitration Board,
  3. the application specified in Article 166(4) may be presented to the President of the Public Procurement Authority,
  4. Article 163(2) and (5) may not be applied,
  5. Article 163(3) Article 164(1)  of the OAC may be applied noting that the decision shall be sent to the President of the National Council of Justice of Hungary by the Chairperson of the court which delivered the decision for the purposes of its publication in the Reports and the President of the National Council of Justice of Hungary shall make the decision – as well as the related decisions specified in Article 163(3) of the OAC - available for the President of the Public Procurement Authority.

The operation of the Authority

191. §

1.  The Authority may not conduct any other business activities, accept pecuniary contributions from, or grant the same to any entities or persons.

2.  The collected administrative service fee, shall constitute the Authority‘s own revenues. The revenue from the examination of the notices shall be used partly to ensure the IT support for the Authority to perform its duties pursuant to this Act.

3.  The administrative service fees payable pursuant to paragraph 2 shall be used to cover the costs incurred by the Authority in the course of performing its duties.

4.  The Authority shall keep separate records of the administrative service fee, procedural fine and fine payments received, for the purpose of monitoring compliance with the fee payment obligation. Taking into account Article 339 (1) and Article 339 (2) (q) of the CP and the related provisions of this Act, the Authority shall make settlements of its revenues, as of December 31, from fines in the current year as reduced with the amount of its repayment obligations incurred in the current year. The maintenance of records on fees, procedural fine and fine, their handling and reporting shall be governed by the legislation on the accounting of public finances.

5. To the administrative service fee referred to in paragraph 2 Act XCIII of 1990 on Duties (hereinafter: AD) shall apply as follows:

  1. its provisions set out in Article 3 (4) and Article 28 (2) and (3) shall apply to fee payment obligation;
  2. the first sentence of Article 31(1) and the provisions set out in Article 31(2) and (5) and shall apply to the establishment of entities subject to fee payment;
  3. its provisions set out in Article 86 shall apply to limitation as appropriate, with the derogation that the duty referred to in the AD shall be interpreted as fee.