Közbeszerzési Hatóság

188. §

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.