Act CVIII of 2011 on Public Procurement

7/21/2019 Act CVIII of 2011 on Public Procurement

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Act CVIII of 2011

on Public Procurement

PART ONE

General Provisions

Chapter I

Objectives and Basic Principles

Section 1

This Act governs public procurement procedures and the related review procedures in order to ensure the

transparency of public spending and to improve control of the appropriation of public funds, and to ensure faircompetition in the course of public purchases. The objective of this Act and the legislation adopted for theimplementation of this Act, furthermore, is to facilitate the participation of micro, small and medium-sizedenterprises in public procurement procedures, to promote sustainable development and help to achieve the Statessocial objectives, and to promote legitimate ways of employment.

Section 2

(1) In public procurement procedures contracting entities shall provide for, and economic operators shall respectthe fairness and transparency of competition and sufficient degree of advertising.

(2) Contracting entities shall ensure equal opportunity and equal treatment for all economic operators affected.

(3) In public procurement procedures contracting entities and economic operators shall proceed in accordance withthe requirement of good faith and fairness, and of the principle of due course of the law.

(4) Having regard to public spending contracting entities shall proceed bearing in mind the principle of efficientand prudent management.

(5) Economic operators established in the European Union and Community goods shall be granted nationaltreatment in public procurement procedures. National treatment to economic operators established outside theEuropean Union and to non-Community goods shall be granted in procurement procedures in harmony with theinternational commitments of Hungary and the European Union in the field of public procurements.

(6) The language in which public procurement procedures shall be conducted is Hungarian, contracting entitiesmay decide to accept the use of a language other than Hungarian in public procurement procedures, however, it maynot be made mandatory.

Section 3

Derogations from the regulations of this Act are permitted only to the extent expressly permitted in this Act. In theapplication of the provisions of this Act, and in matters not regulated by law the objectives of public procurementregulations and the fundamental principles of procedures for the award of public contracts shall be duly observed inthe preparation and implementation of public procurement procedures, and also during the conclusion and

performance of the contract. The provisions of Act IV of 1959 on the Civil Code of the Republic of Hungary(hereinafter referred to as Civil Code) shall apply to contracts concluded in public procurement procedures, subjectto the exceptions set out in this Act.


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Chapter II

Definitions

Section 4

For the purposes of this Act:

1. tenderer shall mean an economic operator which has submitted a tender under a public procurementprocedure;

2. subcontractor shall mean an economic operator which directly participates in the perfo rmance of the contractawarded following the public procurement procedure on behalf of the tenderer, with the exception of:

a) any economic operator which operates under exclusive rights,

b) any manufacturer, distributor, supplier of parts or materials involved under contract in the performance of thecontract awarded,

c) in connection with public works contracts, any supplier of building materials;

3. contracts related to the countrys essential security interest shall mean public contracts whose object is directlyrelated to public works and to supplies of goods and services obtained to meet the needs of the general public interms of safety, environmental, health, economic, and defense considerations, including where purchases are made inconnection with the cleanup of flood damage in a state of emergency defense alert;

4. dynamic purchasing system shall mean a completely electronic process for making commonly used purchases,the characteristics of which meet the requirements of the contracting entity, which is limited in duration and openthroughout its validity to any tenderer which satisfies the selection criteria, who is not covered by any of the groundsfor exclusion and has submitted an indicative tender that complies with the specification;

5. electronic auction shall mean a repetitive process, comprising part of the public procurement procedure,involving an electronic device for the presentation of new prices, revised downwards, and/or new values concerning

certain elements of tenders, which occurs after the evaluation of the tenders according to Subsection (4) of Section63, enabling them to be ranked using automatic evaluation methods;

6. electronic means shall mean electronic equipment used for the processing and storage of data which is transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;

7. European Union and Member State of the European Union shall be understood as the European EconomicArea and the States who are parties to the Agreement on the European Economic Area, with the exception covered

by Paragraph d)of Subsection (1) of Section 9;

8. sustainability criteria shall mean criteria defined by the government decree on the implementation ofsustainability criteria, such as in particular the aspects relating to resource and energy efficiency, dematerialization,reduction of greenhouse gas emission, and to solutions to minimize the level of environmental impact and pollutionduring the life of a given product or service;

9. economic operator shall mean a natural or legal person, unincorporated business association, soleproprietorship and any other entity with legal capacity under the laws of its home country, which offers on themarket to execute works and/or the construction of new buildings, supply products and provide services;

10. false information shall mean when information has been knowingly disclosed as distorted;

11. misrepresentation shall mean a statement of an untruth;


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12. framework agreement shall mean an agreement between one or more contracting entities and one or moretenderers, the purpose of which is to establish the substantial terms and conditions governing the contracts to beawarded during a given period, in particular with regard to the prices and, where appropriate, the quantity envisaged;

13. preparation of a procurement procedure shall mean the actions required before the commencement of a givenpublic procurement procedure, including in particular the assessment and market survey relevant to the givenprocedure, calculating the estimated value of the contract, the publication of a tender notice, invitation and tender

documents;

14. commencement of the award procedure shall mean the date of publication of the contract notice, as the initialstep of the public procurement procedure, the date of delivery of the invitation to confirm interest [Subsection (1) ofSection 38] or, in the case of negotiated procedures without prior publication of a contract notice, the date of dispatchof the invitation to negotiations in the case under Subsection (2) of Section 99, or failing this the date ofcommencement of negotiations;

15. community goods shall mean the goods defined as such in Council Regulation (EEC) No. 2913/92establishing the Community Customs Code;

16. dominant influence shall mean when an entity has the capacity to exercise at least one of the following overanother entity:

a)based on its share in the companys subscribed capital, it solely controls the majority of the voting rights of theowners (shareholders),

b)it solely controls the majority of votes based on agreement with the other owners (shareholders),

c) it is entitled to elect (appoint) or dismiss the majority of executive employees (decision-makers, managingdirectors) or members of the supervisory board (supervisory or control body or organ);

17. postal services shall have the meaning defined in the Act on Postal Services, with the exception that theweight limits defined therein shall not apply to postal consignments;

18. other services than postal services shall mean services provided in the following areas:

a) mail service management services (services both preceding and subsequent to dispatch, such as mailroommanagement services),

b) added-value services linked to and provided entirely by electronic means (including the secure transmission ofcoded documents by electronic means, address management services and transmission of registered electronic mail),

c) services concerning postal items not included in Point 17, such as direct mail bearing no address,

d)financial services, as defined in Point 6 of Schedule No. 3 and in Paragraph b)of Subsection (5) of Section 9,including payment services,

e)philatelic services,

f) logistics services relating to postal consignments (services combining physical delivery and/or warehousing with

other non-postal functions);19. candidate tenderer shall mean an economic operator which has sought an invitation to take part in the first

stage of a public procurement procedure comprising more than one stage;

20. body authorized to operate social employment programs shall have the meaning defined in the governmentdecree laying down provisions, under authorization conferred by the Act on Social Services Administration andSocial Welfare Benefits, for the authorization and supervision of social employment, for requesting socialemployment aid and for overseeing the appropriation of this aid;


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21. financial aid shall mean assistance provided to the contracting entity for the execution of a publicprocurement contract in the form of money or other equivalent means, other than tax allowances and guarantees;

22. design contest shall mean those procedures - regulated in detail by specific other legislation - which enablethe contracting authority to acquire, mainly in the fields of architecture and engineering, a plan or design selected bya jury after being put out to competition with or without the award of prizes;

23. sheltered employment shall mean transit or long-term employment provided by accredited employers,provided that more than 50 per cent of the employees are considered disabled under Section 22 of Act CXCI of 2011on the Benefits Provided to Workers with Disabilities and on the Amendment of Certain Acts.

Chapter III

Personal and Material Scope

Section 5

Public award procedures are to be conducted by public authorities for entering into contracts for pecuniary interesthaving as their object the execution of works or specific supplies subject to predetermined value limits (public

procurement).

Contracting Authorities

Section 6

(1) For the purposes of this Act contracting entity shall mean:

a) ministries, the Prime Ministers Office, and the central purchasing entities authorized to conduct centralizedprocurement procedures;

b) the State, municipal governments and all budgetary authorities, public foundations, local and nation-widenationality self-governments, associations of municipal governments, central purchasing entities of exclusive

jurisdiction authorized by a municipal government to conduct centralized local procurement procedures locally, or bya group of municipal governments or communities governed by a common office to conduct centralized procurementprocedures, associations of municipal governments for regional development, and territorial development councils;

c)bodies recognized as having the capacity to perform legal acts, established to engage in activities - other thanindustrial or commercial activities - in the public interest, or one that is already engaged in such activities, oncondition that any one or more of the organizations referred to in Paragraphs a)-d), Parliament or the Governmentdirectly or indirectly exercises dominant influence over it, separately or collectively, or that is financed for the most

part by one or more of these organizations (bodies);

d)the economic operator referred to in Paragraph k)of Subsection (1) of Section 9;

e)any economic operator [Paragraph c)of Section 685 of the Civil Code], other than those covered by Paragraphsa)-d),that is engaged in pursuing either of the public service activities referred to in Subsection (2) of Section 114, or

that was created for the principle purpose of the pursuit of such activities, over which one or more of the entitiesreferred to in Paragraphs a)-d) is able to exercise, directly or indirectly, dominant influence, as regards the

procurements carried out in connection with discharging its public service activities under Subsection (2) of Section114;

f) any operator, other than those covered by Paragraphs a)-e), that is engaged in pursuing either of the publicservice activities referred to in Subsection (2) of Section 114 under special or exclusive rights, as regards the

procurements carried out in connection with discharging its public service activities under Subsection (2) of Section114;


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g)in connection with subsidized procurements, any operator, other than those covered by Paragraphs a)-f) - withthe exception of private entrepreneurs in the case of procurements below the EU threshold -, whose public supply or

public service contract, or public works contract is financed directly for the most part by one or more of the operatorsreferred to in Paragraphs a)-d) in the case of procurements below the EU threshold, or financed directly coveringmore than seventy-five per cent in the case of procurements below the EU threshold which, however, reach thenational limits;

h)as regards the implementation of a given procurement, any operator, other than those covered by Paragraphs a)-g), which carries out a public procurement procedure of its own motion or under contractual commitment, or underobligation imposed by specific other legislation.

(2) In the application of Paragraph c)of Subsection (1), in connection with the definition of activities in the publicinterest, not having an industrial or commercial character, whether the body defined therein is engaged in the pursuitof any gainful activity outside its public interest missions, and whether such activity exceeds its general interestactivities is irrelevant from the perspective of recognizing such operator as a contracting entity.

(3) If the contracting entity covered by Subsection (1) is a credit institution or a financial enterprise, they shall notbe treated as contracting entities with respect to the financial services and activities auxiliary to financial services,and investment services and activities auxiliary to investment services supplied to them.

(4) In the application of Paragraph f)of Subsection (1), special or exclusiverights shall mean rights granted bythe competent authority by way of any legislative, regulatory or administrative provision the effect of which is tolimit the exercise of activities defined in Subsection (2) of Section 114 to one or only a restricted number of entities,and which substantially affects the ability of other entities to carry out such activity.

Aim of Public Contracts

Section 7

(1) Public contracts may, in general, be concluded for the purchase of goods and services, for public works, andpublic works concessions and service concessions.

(2) Public supply contracts are contracts for pecuniary interest having as their object the purchase, lease, rental or

hire-purchase, with or without the option to buy, of transferable and tangible products concluded between a supplierand a contracting entity. Public supply contracts shall also cover siting and installation operations.

(3) Public works contracts are contracts for pecuniary interest having as their object the ordering (and acceptance)of one of the following works:

a)the execution, or both the execution and design - as defined in specific other legislation -, of works related toone of the activities referred to in Schedule No. 1;

b) the execution, or both the execution and design - as defined in specific other legislation -, of a buildingstructure;

c)the execution, by whatever means, of a building structure corresponding to the requirements specified by thecontracting entity.

(4) Public service contracts shall mean contracts - other than public works or supply contracts - for pecuniaryinterest concluded between a service provider and a contracting entity, having as their object the provision ofservices.

(5) Public works concession is a contract of the same type as a works contract except for the fact that theconsideration for the works to be carried out consists either solely in the right to exploit the work or in that righttogether with payment, where exploitation risks shall be assumed wholly or mostly by the successful tenderer.


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(6) Services provided on the basis of a concession shall mean the supply of services where the consideration forthe services to be carried out by the contracting entity consists either solely in the right to exploit the service for aspecific duration (right of exploitation) or in this right together with payment, where exploitation risks shall beassumed wholly or mostly by the successful tenderer.

Section 8

(1) If a public contract contains several different objects of procurement, which are essentially related by nature, itshall be rated based on the one with the highest value.

(2) Contracts having as their object the purchase of supplies and/or services shall be treated as a public servicecontract if the value of the service is higher than the value of the supplies.

Exemptions

Section 9

(1) This Act shall not apply:

a) with the exception of Part Five of this Act, to procurements affecting classified information, or which arerelated to fundamental national security or defense concerns and requiring special security measures (hereinafterreferred to as classified procurement procedure) - in connection with procurements whose value reaches the EUthreshold and in respect of which the competent Parliament committee has passed a preliminary decision precludingthe application of this Act - where such procurements are covered by specific other legislation adopted byauthorization of this Act, or which are exempted also from the specific other legislation adopted by authorization ofthis Act;

b)with the exception of Part Five of this Act, in the field of national defense, to purchases of goods and servicesmade expressly for military and law enforcement purposes (weapons, ammunition, military supplies), includingcontracts for the supply of services and public works contracts (hereinafter referred to as defense procurement

procedure), in conformity with specific other legislation adopted by authorization of this Act, and where suchprocurements are exempted also from the application of that specific other legislation adopted by authorization ofthis Act in the interest of fundamental national security and defense concerns, in accordance with Article 346 of the

Treaty on the Functioning of the European Union;

c)to special procedures for purchases governed under international treaty or international agreement, if the treatyor agreement concerns the stationing, passage or engagement of troops (military forces), including the purchasesmade in connection with the deployment (transfer) or re-deployment of military units to the operating theater for theimplementation of deployment (transfer) or re-deployment;

d) to special procedures for procurement governed by international agreement entered into with a non-memberstate covering services intended for the joint implementation or exploitation of a project;

e)to contracts awarded under special procedures, as defined by international organizations;

f) to procurement contracts whose sole purpose is to enable the contracting entity to provide one or more publicelectronic communications services, or the provision or operation of, or access to, public electronic communications

networks;

g) to purchases of works, supplies and/or services through a central purchasing body by way of publicprocurement procedures by bodies on whose behalf the central purchasing body has awarded the relevant publiccontracts;

h)to public works concessions and service concessions awarded by the contracting entities specified in Paragraphsa)-f)of Subsection (1) of Section 6, if the purpose of the concession is to enable the contracting entity to dischargeits public service activities under Subsection (2) of Section 114 and, pursuant to Section 20 or Subsection (2) ofSection 121, Chapter XIV of this Act would apply;


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i)if a particular service concession is covered by the Act on Concessions, where the contracting entity shall notifythe Kzbeszerzsi Hatsg (Procurement Authority) on the opening of proceedings according to the Concessions Actin writing without delay;

j)where a particular service concession also falls within the scope of the Act on Regular Public Transport ServicesProvided by Bus, or under the Act on Rail Transport in connection with local public railroad services by means oftram, with the proviso that the contracting entity shall notify in writing the Kzbeszerzsi Hatsg thereof without

delay;

k)to agreements:

ka) concluded by a contracting entity referred to in Paragraphs a)-d) of Subsection (1) of Section 6 with aneconomic operator of which it is the sole owner, and that the contracting entity supervises and controls outright asregards administrative duties with a view to carrying out its public functions or providing a service to the public, ormaking arrangements for having them carried out by others, and it has the capacity to assert considerable influenceupon the strategic objectives and major decisions of that economic operator, provided that after the conclusion of thecontract at least 80 per cent of the net annual income of the economic operator in the financial year concernedderives from discharging the contract to be concluded with the sole proprietor (shareholder),

kb) concluded by a contracting entity referred to in Paragraphs a)-d) of Subsection (1) of Section 6 with an

economic operator whose shares are held exclusively by this contracting entity and by another contracting entity(entities) referred to in Paragraphs a)-d)of Subsection (1) of Section 6, and that the contracting entities affectedsupervise and control outright as regards administrative duties with a view to carrying out its public functions or

providing a service to the public, or making arrangements for having them carried out by others, and they have thecapacity to assert considerable influence upon the strategic objectives and major decisions of that economic operator,

provided that after the conclusion of the contract at least 80 per cent of the net annual income of the economicoperator in the financial year concerned derives from discharging the contracts to be concluded with the contractingentities involved;

l)to cases where the mandatory public education functions prescribed by Act LXXIX of 1993 on Public Educationupon municipal governments are carried out by non-governmental operators of institutions, or where the rights forthe operation of public education institutions are transferred to non-governmental operators of institutions.

(2) The provisions contained in Paragraph k) of Subsection (1) shall apply also if the owner of the economic

operator referred to in Paragraphk) of Subsection (1) is the State, in which case the other requirements set out inParagraph k)of Subsection (1) shall be satisfied by the entity exercising ownership rights (in the case of ministers ordirectors of other central government bodies, the bodies they supervise) in their capacity as the contracting entity.

(3) Unless otherwise provided for by law, the contracts referred to in Paragraph k) of Subsection (1) may beawarded for a fixed term of maximum five years. In the application of Paragraph k) of Subsection (1), theconsideration received for providing public services to third persons under contract shall also be deemed to derivefrom discharging the contracts, regardless of whether the consideration in question is paid by the contracting entityor the person to whom the public service was provided.

(4) The requirements set out in Subparagraphs ka) and kb) shall be satisfied throughout the full term of thecontract. If the requirements set out in Subparagraphs ka)and kb)are no longer satisfied, the contracting entity hasthe right and obligation to terminate the contract with a notice period allowing ample time to find a replacement(conduct a public procurement procedure) for carrying out the public functions in question.

(5) The procedure governed by this Act shall not apply to the procurement of services, if it pertains to:

a) contracts for the purchase of an existing building structure or other property or any right in such buildingstructure or property, with the exception of an agreement (concluded in any form and with any content) for financialservices relating to such contracts;

b) contracts for financial services under Point 6 of Schedule No. 3, consisting of the issue, sale, purchase ortransfer of securities and other financial instruments, or aiming to raise money or capital with a view to the


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implementation of monetary policy, exchange rates, reserve management or other policies of the central governmentinvolving public debt management, furthermore, central banking activities (services);

c) contracts for the purchase, development and production (whether on their own account or jointly) ofprogramming (program material) by media service providers or the Mdiaszolgltats-tmogat s VagyonkezelAlap (Media Service Support and Asset Management Fund), or to a contract for transmission time;

d)contracts for arbitration, mediation and conciliation services;

e)contracts of employment, public service and civil service relationships, the service relationship of governmentofficials, prosecutors, court employees, law enforcement employees, and the service relation of professional soldersserving in the armed forces;

f) research and development service contracts other than those where the benefits accrue exclusively to thecontracting entity for its own use, on condition that the service provided is wholly remunerated by the contractingentity;

g) contracts for services provided by a contracting entities referred to in Paragraphs a)-c) of Subsection (1) ofSection 6 or by an association they have established under exclusive right conferred by law;

h)cases where the contracting entity referred to in Paragraphs a)-c)of Subsection (1) of Section 6 transfers thecarrying out of specific public functions to another contracting entity referred to in Paragraphs a)-c)of Subsection(1) of Section 6, where the transferee contracting entity carries out the public functions independent of the transferorcontracting entity, under its own responsibility, without aiming to make a profit.

(6) The contracting entity referred to in Paragraphs a)and b)of Subsection (1) of Section 6 may - upon weighingthe public interest in allowing or disallowing access to such information - restrict access to public information andinformation of public interest processed in connection with the procurements defined in Paragraph a)of Subsection(1) hereof for reasons of national security, for a maximum period of ten years from the date of origin of the data inquestion.

(7) Under Subsection (6), access to:

a)any resolution adopted by the body of competent jurisdiction in the procurement procedure,

b)the name of the successful tenderer of the procurement procedure,

c) the description, subject matter, value and duration of the contracts - including the name of the contractingparties - in the procurement procedure

specified in Paragraph a)of Subsection (1) hereof may not be restricted.

Threshold Amounts for Public Contracts

Section 10

(1) Threshold amounts for public contracts shall mean:

a)the values specified by the relevant legislation of the European Union for public contracts (hereinafter referredto as EU threshold);

b)the values specified by the annual budget act as the national limit for public contracts (hereinafter referred to asnational limit).

(2) The European Commission shall determine the EU thresholds for a given period and shall publish them in theOfficial Journal of the European Union.


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(3) The national limits for specific objects to be procured shall be determined each year in the annual budget act.The EU thresholds prescribed for specific objects to be procured shall be determined, in accordance with the relevantlegislation of the European Union - referred to in Subsection (2) - relating to thresholds, each year in the annual

budget act.

(4) The Kzbeszerzsi Hatsg (Procurement Authority) shall publish the EU thresholds applicable to specificobjects to be procured, as well as the national limits in the Kzbeszerzsi rtest (Public Procurement Newsletter)

at the beginning of each year. In doing so, the forint amount of EU thresholds shall be indicated according to theCommunication of the European Commission published in the Official Journal of the European Union relating to thevalue of EU thresholds in national currencies.

Value of Public Contracts

Section 11

(1) The value of a public contract shall be construed as the highest amount of consideration generally requested, oroffered for the object thereof, and calculated in observation of the provisions set out in Sections 12-18 exclusive ofvalue added tax, at the time of commencement of the award procedure (hereinafter referred to as estimated value).The amount of consideration shall include any form of option, where the tender notice calls for any options.

(2) The estimated value of public contracts shall comprise the fees and other payments (commission) payable bythe contracting entity to tenderers and candidate tenderers, where the contracting entity is liable to make payments ofthe like to tenderers and candidate tenderers.

(3) The choice of method used to calculate the estimated value of a contract may not be made with the intention ofexcluding it from the scope of this Act.

Section 12

(1) In the case of contracts for the lease, rental or hire-purchase of products, the basis for calculating the estimatedcontract value shall be:

a)in the case of fixed-term contracts, where that term is less than or equal to one year, the total value for their full

term or, where the term of the contract is greater than one year, the total value for their full term, including theestimated residual value;

b) in the case of contracts without a fixed term or the term of which cannot be defined at the time of the opening ofthe procedure, the monthly value multiplied by forty-eight.

Section 13

(1) In the case of supply or service contracts which are regular in nature or which are intended to be renewedwithin a given period, the calculation of the estimated value shall be based on the following:

a)either the total actual value of the successive contracts of the same type awarded during the preceding calendaryear, adjusted, if possible, to take account of the changes in quantity or value which could occur in the course of thefollowing calendar year; or

b) the total estimated value of the successive contracts awarded during the twelve months following the firstdelivery, or during the full term of the contract or contracts if that is longer than twelve months.

(2) In the case of public contracts with a buy option, the basis for calculating the estimated contract value shall bethe highest amount of consideration, including the purchase price.

(3) Where a public contract concerns the supply of goods and services both, the estimated contract value shall beestablished on the basis of the total estimated value of the goods and services. The estimated value of public supplycontracts shall also include the estimated value of siting and installation operations where applicable.


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Section 14

(1) In the case of service contracts which do not indicate a total price, the basis for calculating the estimatedcontract value shall be:

a)in the case of fixed-term contracts, where that term is less than or equal to four years, the total value for theirfull term;

b)in the case of contracts without a fixed term or with a term greater than four years, the monthly value multipliedby forty-eight.

(2) For the purposes of calculating the estimated contract value for the services listed below, the following shall betaken into account:

a) in the case of insurance services, the premium payable and other forms of remuneration;

b) in the case of banking and other financial services, the fees, commissions and interest as well as other forms ofremuneration;

c) in the case of contracts involving design tasks, fees or commission payable as well as other forms ofremuneration.

Section 15

The estimated value of design contest shall include:

a) the fees and other forms of remuneration payable to tenderers; and

b) the estimated value of the service where the contract concerned follows a design contest, and that must beawarded to the successful candidate or to one of the successful candidates recommended by the evaluationcommittee, unless the contracting entity (contest organizer) has installed a clause in the notice published for settingthe procedure in motion to exclude the award of such contracts.

Section 16

(1) The estimated value of a public works contract shall be calculated on the basis of the total cost of the project.

(2) The estimated value of a public works contract shall include the estimated value of any supplies or servicesnecessary for the execution of the contract, which the contracting entity made available to the contractor.

(3) The estimated value of supplies or services which are not necessary for the execution of a particular publicworks contract may not be included in the estimated value of the public works contract for the purpose ofcircumventing the provisions of this Act regarding the procurement of those supplies or services.

Section 17

(1) The basis for calculating the estimated value of a framework agreement shall be the maximum estimated value

of all the contracts envisaged for the period in question.(2) The basis for calculating the estimated value of a dynamic purchasing system shall be the maximum estimated

value of all the contracts envisaged for the period in question.

Section 18

(1) Contracting entities may not circumvent this Act, or the provisions of Part Two of this Act, by splittingproposed procurements.


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(2) As regards the estimated contract value for the acquisition of similar supplies and/or services, it shall becalculated on the aggregate for contracts being awarded at the same time in the form of separate lots, as well as thevalue of contracts concluded for the same public works project.

(3) By way of derogation from Subsection (2) above, the procedure under Part Three of this Act shall apply to allcontracts the estimated value of which - exclusive of Subsection (2) - is below 21,824,000 forints for supplies and/orservices, or below 272,800,000 forints in the case of public works contracts, provided that the value of such excluded

lot of the public contract does not exceed twenty per cent of the sum that the contracting entity would haveestablished as the estimated contract value in the application of Subsection (2).

(4) Where the estimated contract value calculated in accordance with Subsection (2) reaches the EU threshold, theprovisions under Subsection (3) shall not apply if exempted from the application of this Act [Section 120] by PartThree of this Act.

(5) Where the contracting entity allows tendering for several lots in the same public procurement procedure, thevalue of all such lots shall be taken into account when calculating the estimated value of the public contract.

(6) Subsection (2) shall apply separately for each foreign mission and for each institution managed by the Statepublic education institution management center with respect to procurements made for foreign missions, andseparately for each Parliament group with respect to procurements financed from the expense accounts made

available to Parliament groups by law. Moreover, Subsection (2) shall apply with respect to procurements made forthe bodies referred to in Paragraphs a)-c)of Subsection (1) of Section 8 and in Subsection (1) of Section 10 of ActCLXIII of 2011 on the Prosecution Service financed from their own appropriations.

Applicable Rules and Procedures

Section 19

(1) Procurements reaching or exceeding the EU thresholds are governed under Part Two of this Act, the onesbelow the EU thresholds and reaching the national limit are governed under Part Three, unless this Act containsprovisions to the contrary.

(2) Contracts for the services listed under Schedule No. 4 may be awarded by the procedure defined in Part Three

of this Act. If the award procedure pertains to a service that includes a service from each of the lists under ScheduleNo. 3 and Schedule No. 4, it may be conducted according to Part Three of this Act, provided that the value of theservice under Schedule No. 4 is higher than that of the service under Schedule No. 3.

(3) In connection with contracts for the legal services referred to in Schedule No. 4, the contracting entity is notrequired to conduct a public procurement procedure, however, if the contract awarded reaches the EU threshold, thecontracting entity shall publish the notice of contracting in accordance with specific other legislation and it shall beindicated in the annual statistical report to be prepared in accordance with specific other legislation.

(4) Service concession contracts are governed by Part Three of this Act.

(5) Part Two of this Act shall apply to public works concessions subject to the specific rules under Chapter XIII.

(6) The detailed provisions on design contests are laid down in specific other legislation. The cases where a design

contest must be conducted may be defined in specific other legislation.

Section 20

(1) Part Two of this Act shall apply to the contracting entities referred to in Paragraphs a)-f)of Subsection (1) ofSection 6 subject to the specific rules under Chapter XIV where the procurement relates to the contracting entityexercising one or more of the activities referred to in Subsection (2) of Section 114.

(2) The specific rules under Chapter XIV shall apply to the contracting entities referred to in Paragraphs a)-f)ofSubsection (1) of Section 6 where the procurement relates to the contracting entity exercising one or more of the


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activities referred to in Subsection (2) of Section 114 and to other activities as well, where the subject-matter of theprocurement, however, is principally intended for the pursuit of the public service activities referred to in Subsection(2) of Section 114. A public procurement procedure may not be conducted aiming to fall within the scope of ChapterXIV or to exclude the application of this Act, therefore consideration should be given to the possibilities ofseparating certain lots of the procurement connected to the pursuit of various activities.

(3) Chapters I-XIII shall apply to the contracting entities referred to in Paragraphs a)-d) of Subsection (1) of

Section 6 where the procurement relates to the contracting entity exercising one or more of the activities referred toin Subsection (2) of Section 114 and to other activities as well, and if it is impossible to determine for which activitythe contract is principally intended.

(4) Chapter XIV shall apply to the contracting entities referred to in Paragraphs e)-f)of Subsection (1) of Section 6where the procurement relates to the contracting entity exercising one or more of the activities referred to inSubsection (2) of Section 114 and at the same time to other activities as well, and if it is impossible to determine forwhich activity the contract is principally intended.

(5) An operator that carries out a public procurement procedure of its own motion or under contractualcommitment according to Paragraph h)of Subsection (1) of Section 6 shall be able to proceed according to ChapterXIV if the procurement relates to the operator exercising one or more of the activities referred to in Subsection (2) ofSection 114.

Chapter IV

Provisions Concerning Contracting Entities and Economic Operators

Proceedings of Contracting Entities

Section 21

(1) Contracting entities - other than those covered by Paragraphsg)-h)of Subsection (1) of Section 6 - shall notifythe Kzbeszerzsi Hatsg (Procurement Authority) if they fall within the scope of this Act, and of any changes intheir particulars within thirty days from the date when they become subject to this Act or from the effective date of

the change.

(2) A contracting entity may grant authorization to another contracting entity to conduct a public procurementprocedure in his name and on his behalf. This, however, may in no case result in enabling the contracting entitygiving the authorization to circumvent the relevant provisions of this Act.

(3) Several contracting entities may form an affiliation for carrying out a public procurement procedure byappointing one contracting entity of the affiliation to effectively carry out the award procedure.

(4) In the cases referred to in Subsections (2) and (3), the notice published for setting the procedure in motion shallcontain an indication that the contracting entity is conducting the award procedure also on behalf of anothercontracting entity or entities.

(5) The Kzbeszerzsi Hatsg shall maintain an up-to-date register on contracting entities (register of contracting

entities) and shall make it available on its website, and shall supply information where necessary to the EuropeanCommission concerning the contracting entities listed in the register. If the entity affected fails to comply with thenotification requirement referred to in Subsection (1) above, or if there is any doubt as to whether this Act applies tothe entity affected, the Kzbeszerzsi Hatsg may refer the case to the Kzbeszerzsi Dntbizottsg (PublicProcurement Arbitration Board).

Section 22


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(1) Contracting entities shall outline the preliminary actions and preparations, the internal control regime of theirprocurement procedures and the powers and authorities of the persons (bodies) authorized to act on their behalf or setto take part in the procedure, as well as the system of documentation and recording in accordance with the relevantregulations. To this end, the person or persons, or the bodies held accountable for the decisions made during

procurement procedures must also be indicated.

(2) Any contracting entity that does not have a comprehensive set of regulations for awarding public contracts in

compliance with the requirements set out in Subsection (1), or if any derogation is warranted as permitted in theregulations, shall make arrangements accordingly before the preparation of the procurement procedure.

(3) Persons and bodies taking any part in the preparation of public procurement procedures, in the preparation ofpublication and the preparation of documentation, as well as during the evaluation of tenders and in any stage of theprocedure on behalf of the contracting entity, shall have adequate professional qualifications in purchasing, legalissues and finances consistent with the subject-matter of the procedure.

(4) The contracting entity shall set up an evaluation committee of at least three members, having the qualificationsreferred to in Subsection (3), for the evaluation of tenders according to the provisions of Subsections (3)-(4) ofSection 63, after the remedying of deficiencies and/or supplying information and explanations (Sections 67-70),where applicable. (3) The evaluation committee shall prepare a written assessment and recommendation in the nameof the contracting entity for the person or body vested with authority to adopt a decision in conclusion of the public

procurement procedure. The evaluation committee shall keep minutes with the evaluation sheets of its members,including explanation, attached.

(5) The person responsible to render the final decision of the award procedure in the name of the contracting entitymay not have a seat on the evaluation committee. In the case of panel decision, the person delegated by the decision-maker into the evaluation committee may serve in an advisory capacity only. In the case of panel decision the rollcall voting system must be used.

Centralized Procurement Procedures

Section 23

(1) The Government may order budgetary authorities and public foundations under its control and supervision, or

public foundation it has founded, as well as State-owned economic operators to conduct their public procurementswithin the framework of a centralized procedure, and may determine the personal and material scope therefor,appoint the organization authorized to invite tenders (central purchasing body) and announce the possibility for

joining the procedure.

(2) Entities which are financed by the Egszsgbiztostsi Alap (Health Insurance Fund) may undertakeprocurement procedures relating to health-care services within the framework of a centralized procedure. TheGovernment shall have powers to decree the detailed regulations concerning the execution of such procedures,including the personal and material scope, as well as to appoint the central purchasing body. Funds allocated for thespecific type of service in the budget of the Egszsgbiztostsi Alap shall be used to finance such centralized public

procurement.

(3) The detailed provisions on centralized procedures - reflecting the necessary derogations from this Act due tothe unique nature of these procedures - are laid down in specific other legislation.

(4) The Government may instruct communities governed by a common office to use the centralized publicprocurement system, and shall decree the detailed provisions on such centralized procedures reflecting the necessaryderogations from this Act due to the unique nature of these procedures.

(5) Any municipal government may order agencies under its control to conduct public procurement procedureswithin the framework of a centralized procedure. The municipal government shall adopt a decree for the centralizedlocal procurement procedure. Centralized local procurement procedures shall be governed by the provisions of thisAct and by the relevant municipal government decrees.


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(6) Several municipal governments may form an affiliation for carrying out public procurement procedurescollectively, within the framework of a centralized procedure. The rules for the cooperation of municipalgovernments participating in the centralized procurement procedures shall be laid down in the association agreementof such municipal governments.

Conflict of Interest

Section 24

(1) Contracting entities shall take every measures necessary to avoid conflicts of interest and the development ofsituations which might prejudice fair competition.

(2) Any person or organization who (that) is unable to execute his (its) functions impartially and objectively forany reason, such as in particular due to economic interests, or any mutual interest that may exist with an economicoperator involved in the procedure, shall be considered biased and may not partake in the preparation andimplementation of the procedure in the name of the contracting entity.

(3) Any person or organization who (that) is involved on the contracting entitys behalf in the procedure itself or inthe preparatory work for a public contract may not enter the procedure in the capacity of a tenderer, candidatetenderer, subcontractor or body participating in the attestation of competence shall be considered biased and may not

partake in the procedure if his (its) involvement might prejudice fair competition. The contracting entity shall drawthe attention of persons or organizations engaged in the preparation of the award procedure to the fact that if his (its)

participation in the public procurement procedure would result in a conflict of interest, with particular regard to theextra information thereby obtained.

(4) A person or organization acting in the name and on behalf of the contracting entity, or engaged by thecontracting entity for carrying out activities connected to the procedure or in the preparatory work shall provide awritten statement to declare of not being affected by the conflict of interest described in this Section.

(5) In the application of Subsection (3), fair competition shall not be considered prejudiced and participation ofany person or organization from whom the contracting entity:

a) has requested information in connection with a specific procurement, such as the assessment and market survey

relevant to the given procedure, calculating the estimated value of the contract without indicating the date ofcommencement of the award procedure, conveying only the information that is necessary for the survey, or

b) has received a proposal for lodging an application (tender) for subsidies or support,

shall not be considered biased, provided that the contracting entity did not supply - in connection with Paragraph a)or b)- any information above and beyond what has been supplied to all tenderers (candidate tenderers) as relating tothe public procurement procedure.

Provisions Relating to Economic Operators

Section 25

(1) Several economic operators may form a group to submit a tender or a request to participate jointly.(2) In the case referred to in Subsection (1), the grouping of tenderers or candidate tenderers shall designate a

representative vested with powers to act on behalf of the grouping of tenderers or candidate tenderers in the publicprocurement procedures.

(3) All statements made in the name of the grouping of tenderers or candidate tenderers shall contain a clearindication of the designation of the grouping of tenderers or candidate tenderers.


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(4) Where the contracting entity is required under this Act to notify the tenderer or candidate tenderer, and in caseswhere additional information (Section 45), remedying deficiencies (Section 67), specific information (Section 67) orexplanation (Sections 69-70) is requested the contracting entity shall send its notices, information and calls addressedto a grouping of tenderers (candidate tenderers) to the representative specified in Subsection (2) above.

(5) If the contracting entity renders the provision of deposits and/or guarantees mandatory (Section 59), in the ca seof groupings of tenderers it shall suffice to make the deposit or guarantee available only once. In the event of any

breach of the obligation to maintain the tender by any tenderer in a grouping [Subsection (4) of Section 59], thecontracting entity shall lay claim to the deposit or guarantee.

(6) The grouping of tenderers shall be jointly and severally liable for the performance of the contract to thecontracting entity.

(7) No change in the person of the economic operators having submitted a tender or request to participate jointlyshall be authorized after the time limit for the receipt of tenders, or the time limit for participation in procedurescomprising more than one stage.

Section 26

Where an economic operator is set to be directly involved in the execution of the public contract in excess of

twenty-five per cent of the value of the contract - or a specific lot where tendering is permitted for individual lots -,such economic operator shall not be treated as a subcontractor, but shall be designated in the tender (request toparticipate) and in the execution of the contract as participating in the grouping of tenderers (or as a candidatetenderer in the participation stage of the public procurement procedure). The proportion of involvement of aneconomic operator in the execution of a contract is determined based on the share it is entitled to receive from theconsideration due under the contract, exclusive of value added tax.

Section 27

(1) The contracting entity may not render participation in a public procurement procedure conditional upon theestablishment of a business association, it may, however, require the successful tenderer(s) to do so where this isdeemed justified in the interest of fulfilling the contract awarded following the public procurement procedure. Thenotice published for setting the procedure in motion shall contain a specific indication of the requirement for the

establishment of a business association.(2) If the contracting entity permits or requires the establishment of a business association with a view to having

the contract performed (project consortium), it shall specify in the tender documents the requirements relating to thecreation of a business association, which must be limited to the companys legal form, the minimum subscribedcapital required - consistent with the contract value -, the companys scope of activities and to the supervision of itsactivities.

Promoting Competition

Section 28

(1) In the same public procurement procedure, or for the same lot where tendering is permitted for individual lots,

a tenderer or candidate tenderer:a)may not submit a tender jointly with another tenderer, and may not submit another request to participate jointly

with another candidate tenderer,

b)may not participate in that same procedure as a subcontractor of another tenderer or candidate tenderer,

c)may not verify the suitability of another tenderer, having submitted a tender, concerning performance of thecontract, or the suitability of another candidate tenderer, having submitted a request to participate, concerning

performance of the contract [Subsection (5) of Section 55].


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(2) Where the contracting entity considers that a clear and manifest infringement of Section 11 of Act LVII of1996 on the Prohibition of Unfair Trading Practices and Unfair Competition (hereinafter referred to as CompetitionAct), or Article 101 of the Treaty on the Functioning of the European Union has been committed during a contractaward procedure, or if there is reasonable suspicion of such infringement, it shall notify the GazdasgiVersenyhivatal (Hungarian Competition Authority) thereof according to the provisions of the Competition Act

pertaining to notifications or complaints.

Reserved Contracts

Section 29

(1) The contracting entity may reserve the right to participate in award procedures in accordance with theprovisions of the relevant legislation, and must reserve it for organizations qualified as sheltered workplaces and forbodies authorized to operate social employment programs, if more then fifty per cent of their workforce is comprisedof workers with reduced ability to work, or for bodies providing employment under a social employment program forworkers cared for in social institutions, if more then fifty per cent of their workforce is comprised of workers withdisabilities. The contracting entity shall clearly indicate this disposition in the notice published for setting the

procedure in motion.

(2) In connection with public contracts reserved according to Subsection (1) above, the contracting entity shallensure equal opportunity to economic operators established in the European Union, if more then fifty percent of theirworkforce is comprised of workers with reduced ability to work.

(3) The personal and material scope and the detailed regulations for the public procurement procedures referred toin Subsection (1) shall be laid down in specific other legislation.

(4) Where Subsection (1) applies, the contracting entity shall proceed in due observation of the provisions of thisAct and specific other legislation, also with a view to the estimated value of purchases.

Chapter V

Provisions on Advertising and Communication

Rules on Publication, Data Disclosure and Procurement Programs

Section 30

(1) Contracting entities shall publish by means of a notice:

a)calls for tender in open procedures;

b) invitations to participate in restricted procedures, negotiated procedures with prior publication of a contractnotice and competitive dialogue procedures, with the exception of invitations to participate in restricted or negotiated

procedures with prior publication of a periodic indicative information, or a restricted or negotiated procedures withprior publication of a notice on qualification system;

c)calls for setting the procedure under Section 123 in motion;

d)invitations to participate in restricted or negotiated procedures with prior publication of a periodic indicativeinformation, or in restricted or negotiated procedures with prior publication of a notice on qualification system;

e)notifications of the results of the award procedure;

f)design contest notices for design contests;


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g)results of design contests;

h)notices of contract amendment.

(2) The contracting entity shall publish the notice of the results of the award procedure [Paragraph e)of Subsection(1)] at the latest within ten working days from the date of signing the contract, or failing this the contracting entitysdecision to declare the procedure unsuccessful, or refusing the conclude the contract [Subsection (9) of Section 124].

The public procurement procedure shall be considered concluded upon having this notice published.

(3) By way of derogation from Subsection (2), the contracting entity may publish a notice of the results of thepublic procurement procedure conducted under a framework agreement concerning the contracts awarded on thebasis of a framework agreement in a single notice. In this case, the notice shall be dispatched within ten workingdays following the last day of the quarter for contracts concluded under a framework agreement during the calendarquarter. A notice is not required for the first quarter - if only a fraction - following the conclusion of the frameworkagreement.

(4) Contracting entities shall publish the notice of contract amendment [Paragraph h)of Subsection (1)] withinfifteen working days from the effective date of such amendments.

(5) Contracting entities shall send the notices by way of electronic means as specified in specific other legislationto the Kzbeszerzsi Hatsg (Procurement Authority). Contracting entities shall publish the notices required underthis Act prepared according to the model prescribed in specific other legislation. The detailed provisions on thestandard model notices prescribed and the mandatory layout of such models, on the disclosure and control of thenotices, including the fee charged for such controls, dispatch and the procedures for the publication of such notices islaid down in specific other legislation. The fees charged for the control and editing of notices shall be treated asadministrative service fees. The Authority shall allocate such fees for financing its operating expenses.

Section 31

(1) Contracting entities shall publish the following data, information and documents on their own websites ifavailable, or failing this on the website of the Kzbeszerzsi Hatsg (Procurement Authority) or - where applicable- municipal government institution:

a) the procurement program, and any amendment (amendments) thereto;

b) the agreements concluded under Paragraph k) of Subsection (1) of Section 9;

c) information related to the possibility to pursue pre-contractual remedies under Subsection (2) of Section 79;

d) in connection with any review procedure opened in respect of a public procurement procedure:

da)the particulars of the request as specified in this Act [Subsection (9) of Section 137],

db) the ruling of the Kzbeszerzsi Dntbizottsg (Public Procurement Arbitration Board) authorizing theconclusion of the contract [Subsection (4) of Section 144];

e) contracts awarded on the basis of public procurement procedures;

f)the following data and information relating to the performance of a contract: reference to the contract notice, thenames of the parties to the contract, an indication as to whether the contract was executed as agreed, the date ofperformance as accepted by the contracting entity, as well as the date of payment of the consideration and theamount of consideration paid;

g)the annual statistical report prescribed by specific other legislation.

(2) The data under Subsection (1) shall be deemed information of public interest, and as such may not be withheldon the grounds of being treated as a business secret.


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(3) The procurement program referred to in Paragraph a)of Subsection (1) shall be kept posted on the websiteuntil the procurement program for the next year is published.

(4) The data, information and documents referred to in Paragraphs c)-d) and f)-g) of Subsection (1) above shallremain available on the website up to the time specified in Subsection (2) of Section 34.

(5) The contracts mentioned in Paragraphs b) and e)of Subsection (1) shall remain available on the website for a

period of five years from the date of performance without any interruption.

(6) The information under Paragraph f)of Subsection (1) shall be published within fifteen days from the date offulfillment of the contract by both parties, in the case of contracts of indefinite duration or with a term of over oneyear, the above-specified information shall be updated on a yearly basis following the conclusion of the contract.

Section 32

(1) Contracting entities may prepare prior summary information - or a periodic indicative information if thecontracting entity proceeds according to the specific rules under Chapter XIV - at the beginning of each fiscal year,for the year or for the following period of maximum twelve months concerning:

a) all public contracts for the supply of goods planned for the year (other than those subject to any exemption and

whose value reaches or exceeds the EU threshold) where the total estimated contract value reaches or exceeds theEU threshold;

b) all public contracts for the supply of services under Schedule No. 3, planned for the year (other than thosesubject to any exemption and whose value reaches or exceeds the EU threshold) where the total estimated contractvalue reaches or exceeds the EU threshold.

(2) The indicative summary information of public supply contracts shall be broken down according to CN chaptersby means of reference to the Common Procurement Vocabulary (CPV).

(3) The indicative summary information of public service contracts shall specify each type of service separatelywith reference to the classification of services under Schedule No. 3.

(4) Contracting entities may prepare prior summary information - or a periodic indicative information in the case

of procedures to be carried out according to the specific rules under Chapter XIV - containing the essentialcharacteristics of public works contracts planned for the year if the estimated contract value reaches or exceeds theEU threshold applicable to public works. Where a contracting entity prepares a prior summary information, it shall

be completed upon the final approval of the public works contract.

(5) Where a procurement procedure concerns objects referred to in Paragraphs a)and b)of Subsection (1), priorsummary information may be prepared separately for each one of them, or they may be comprised in a single notice.

(6) The prior summary information referred to in Subsection (4) shall be drawn up separately.

(7) Contracting entities shall publish the prior summary information, or the periodic indicative information withinthe meaning of Chapter XIV, by way of a notice prepared according to the model prescribed in specific otherlegislation.

(8) If the prior summary information (periodic indicative information) is published on the official website of thecontracting entity, the contracting entity shall send the notice entitled notice published on a buyer profile to thePublications Office of the European Union via the Kzbeszerzsi Hatsg (Procurement Authority). The priorsummary information (periodic indicative information) may be published on the website after the aforementionednotice is dispatched to the Publications Office of the European Union by way of electronic means.

(9) Having a notice containing prior summary information (periodic indicative information) published shall notconstitute any obligation for conducting the public procurement procedures to which it pertains.


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(10) Contracting entities proceeding according to Chapter XIV may, in particular, publish a notice on periodicindicative information relating to major public works projects without repeating the information previously includedin a periodic indicative information of the like, provided that it is clearly stated that such notices are additionalnotices.

(11) If the notice referred to in Subsection (7) is published by way of posting on the website of the contractingentity, the date of posting on the website shall apply in terms of the legal ramifications attached to the publication of

notices.

Section 33

(1) The contracting entities referred to in Paragraphs a)-d) of Subsection (1) of Section 6 - other than thecontracting entities under Chapter XIV and the central purchasing bodies authorized to conduct centralized

procurement procedures - shall prepare a summarized annual plan in the early part of each fiscal year, by 31 Marchat the latest, outlining all purchases planned for the given year (hereinafter referred to as procurement program).Contracting entities shall retain their procurement program for a minimum period of five years. Procurement

programs shall be made available to the general public.

(2) Contracting entities may launch procurement procedures prior to the completion of the procurement program,however, it too shall be properly indicated in the program.

(3) Having included a particular procurement in the procurement program shall not constitute any obligation forconducting a procedure for awarding a contract therefor. Moreover, the contracting entity shall be entitled to conducta procedure for a procurement not previously included in the procurement program where it is justified and/orwarranted due to reasons unforeseen or to other changes in plans. In these cases the procurement program shall berevised according to the unforeseen procurement or other change, with the reason indicated.

(4) Contracting entities shall, upon request, convey a copy of their procurement programs to the KzbeszerzsiHatsg (Procurement Authority) and to the supervisory bodies of competence for supervising the contractingentitys activities.

Provisions Relating to the Documentation of Award Procedures,

Communication and Time Limits

Section 34

(1) Contracting entities shall document all public procurement procedures they publish - including preparationsand performance of contracts awarded upon these procedures - in writing, or electronically in accordance withspecific other legislation implemented by authorization of this Act where procedural actions are carried out by wayof electronic means.

(2) Contracting entities shall retain all documents connected to the preparation and conduct of public procurementprocedures for five years following the conclusion of the procedure [Subsection (2) of Section 30], and alldocuments related to the performance of public contracts for five years following fulfillment of the contract. Where areview procedure has been opened in respect of a procurement procedure, the related documents shall be retaineduntil the definitive conclusion of such procedure, or the conclusion of judicial review where applicable, in any case

for at least five years.

(3) Contracting entities shall make available documents relating to procurement procedures at the request of theKzbeszerzsi Hatsg (Procurement Authority) or other bodies so empowered by the relevant legislation by way ofdispatch or electronic means.

Section 35

(1) All statements and representations between the contracting entity and economic operators must be made inwriting, unless otherwise implied by the provisions of this Act.


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(2) Unless a specific mode of communication is expressly prescribed by this Act, written statements may be made:

a)by way of postal delivery or service of process, in accordance with Subsection (5);

b)by fax;

c)by way of electronic means.

(3) The contracting entity may prescribe the use of a specific mode of communication, this, however, may notprejudice the principle of equal treatment of all economic operators; making statements solely by way of electronicmeans may not be demanded of tenderers, except for electronic auctions.

(4) The statement under Paragraph c)of Subsection (2) may be submitted in the form of a document that has beenexecuted by means of at least an advanced electronic signature, or in the form of an electronic document that satisfiesthe requirements set out in specific other legislation implemented by authorization of this Act.

(5) Where information is requested by this Act in any form, it may be supplied by way of postal delivery only inexceptional and justified cases.

Section 36

(1) Procedural actions may be performed by way of electronic means also. The execution of procedural steps inconnection with public procurements by way of electronic means is governed by a government decree that maycontain some derogation from the relevant provisions of this Act to the extent warranted by having such proceduralactions carried out electronically.

(2) Where this Act contains instructions concerning the keeping of minutes in the course of a public procurementprocedure, it may be satisfied by means of an authentic instrument drafted on actions performed in the presence of anotary public.

(3) Where this Act or specific other legislation adopted under authorization by this Act contains provisions for thesubmission of a document in the course of a public procurement procedure, or when it is requested by the contractingentity pursuant to this Act, a non-certified copy may be accepted unless otherwise provided for by law. Where astatement or document is required for enforcing a claim directly (such as a bank guarantee or a guarantee document)

the contracting entity may require such to be provided in the original or in a certified copy. Where a document issubmitted in a language other than Hungarian, the contracting entity shall accept the true translation of suchdocument made by the tenderer.

(4) If the country where a tenderer is established outside the European Union does not recognize the verificationrequired under this Act, the contracting entity shall be authorized to accept a certificate or document that isequivalent to the verification in question.

(5) In public procurement procedures contracting entities may not demand proof in connection with any facts andcircumstances, furthermore, tenderers and bodies participating in the attestation of competence shall not be requiredto verify those facts and circumstances to which the contracting entity has access free of charge from any electronic,authentic or official public register that is available in Hungarian, such as the records and registers covered by theAct on the General Provisions Relating to the Taking Up and Pursuit of the Business of Service Activities.

(6) The Kzbeszerzsi Hatsg (Procurement Authority) shall publish a guide concerning the electronic, authenticor official public registers referred to in Subsection (5), which are frequently accessed in connection with the subject-matter of public procurements, including their internet addresses. If either of the records or registers mentioned inSubsection (5) are not included in the guide published by the Kzbeszerzsi Hatsg, the tenderer (candidatetenderer) or the body participating in the attestation of competence shall indicate in the public procurement

procedure the register affected.

(7) The contracting entity shall check the registers referred to in Subsection (5) on one occasion between the timelimit for the receipt of tenders and the time of sending notice to tenderers of the results of the award procedure, or -in procedures comprising more than one stage - between the expiry of the time limit for participation and the time of


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sending notice to candidate tenderers of the results of the participation stage, and shall retain the outcome of theverification process attached to the documents of the public procurement procedure.

Section 37

(1) As regards the time limits prescribed by this Act, a deadline or time limit expressed in days, months or years(hereinafter referred to collectively as time limit) shallnot include the initial day. Initial day means the day whenthe cause substantiating the commencement of the time limit occurs.

(2) Where a time limit is expressed in months or years, it shall expire on the day that corresponds to the dayfollowing the initial day, or if such day does not exist in the month when the time limit expires, on the last day of themonth.

(3) If the last day of the time limit falls on a day that is not a working day, the time limit shall expire on the nextworking day.

(4) A time limit indicated in the tender notice (invitation to tender) shall commence on the day that follows thepublication of the tender notice (invitation to tender), or the day on which the invitation was sent directly.

PART TWO

Provisions Governing Public Contracts Whose Value Reaches the EU

Threshold

Chapter VI

The Notice

Contents of the Notice Published for Setting the Procedure in Motion

Section 38

(1) A notice for setting the procedure in motion can be made - consistent with the type of public procurementprocedure - in the form of contract notice, invitation to participate, invitation to tender, or invitation to confirminterest defined in specific other legislation laying down specific rules for the procedure under Chapter XIV.

(2) The contracting entity shall publish contract notices and invitations to participate drawn up in accordance withthe models given in specific other legislation.

(3) A notice published for setting the public procurement procedure in motion shall inter alia contain thefollowing information:

a)name, address, telephone and fax number (e-mail) of the contracting entity;

b)the type of procedure, including the reasons for use of the negotiated procedure or accelerated procedure, whereapplicable;

c) the way to obtain tender documents and additional documents, or the descriptive documents in the case ofcompetitive dialogue procedures, the deadline by which to obtain them, and the place and financial conditions of

purchasing them. In the case of restricted procedures, negotiated procedures with prior publication of a contractnotice and competitive dialogue procedures, the notice published for setting the procedure in motion is to contain the

particulars of the tender documents and/or descriptive documents if the contracting entity makes the tenderdocuments (descriptive documents) available during the participation stage, or in negotiated procedures without prior


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publication of a contract notice only if the contracting entity has prepared tender documents and did not send themwith the invitation to tender;

d)the object and volume of the procurement;

e)description of the contract in respect of which the award procedure is conducted;

f) term of the contract or the time limit for delivery;

g)place of performance;

h)payment terms and conditions, or reference to the relevant regulations;

i)an indication as to whether tenders with multiple alternatives are accepted, and where contracts are subdividedinto lots, indication of the possibility of tendering for one, for several and/or for all the lots;

j) criteria to be applied in the evaluation of tenders [Subsection (2) of Section 71], the particulars under Subsection(3) of Section 71 where the award is made to the most economically advantageous tender, taking also into accountSubsection (5) of Section 71;

k)the grounds for exclusion and the approved means of verification;

l)selection criteria, particulars for the assessment of suitability and the approved means of verification;

m) the time limit for the receipt of tenders, or the time limit for participation in the case of invitation to participate;

n)the address to which tenders or requests to participate must be sent;

o) the language (languages) in which tenders and requests to participate must be drawn up, and an indicationwhether tenders and requests to participate may be submitted in a language other than Hungarian;

p) the date and place of the opening of tender(s), and the persons authorized to be present at the opening oftenders; in the case of invitations to participate, the date and place of the opening of requests to participate;

q)the minimum duration of the binding period, except for invitations to participate;

r)in the case of invitations to participate, the planned date of dispatch of invitations to submit a tender;

s) information relating to requirements for providing financial guarantees, and other deposits and/or guaranteesstipulated in the contract;

t)if funding for a public procurement is provided from European Union resources, the particulars of the project(program) affected.

(4) Detailed information relating to the guarantees specified in Paragraph s)of Subsection (3) need not be includedin the invitation to participate, however, the amount of financial guarantees the contracting entity plans to prescribefor entering the tendering stage of the procedure shall be indicated in the invitation to participate; in connection withcontractual guarantees, the particulars under Subsection (1) of Section 126 shall be indicated.

Section 39

(1) The notice published for setting the procedure in motion shall - under all circumstances - contain facilities toguarantee equal opportunities for all tenderers in preparing their tenders, or to submit their request to participate.

(2) Information concerning the subject-matter of the procurement shall be made available in the notice publishedfor setting the procedure in motion, so as to enable economic operators to determine whether the proposed contractsare of interest to them.


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Section 40

(1) The contracting entity shall specify in the notice published for setting the procedure in motion requiringtenderers to disclose in their tenders or requests to participate:

a) the part or parts of the public procurement contract in connection with which the tenderer (candidate tenderer)plans to use a subcontractor;

b) any subcontractor planned to be involved covering more than ten per cent of the value of the contract inconnection with those parts, and the percentage share of the public procurement contract in connection with whichthe said subcontractors will be involved.

(2) The indication and subcontract referred to in Subsection (1) shall have no bearing on the tenderers liability forperformance.

(3) If the contracting entity has submitted or plans to submit an application (tender) for financial aid, the proceduremay be launched irrespective of whether the tender notice has already been published or not, however, in the notice

published for setting the procedure in motion economic operators shall be advised thereof, and of what is containedin Subsection (4).

(4) In the application of Subsection (3), if the application for financial aid is refused, or if approved for a sum lessthan that required, it shall be construed as a circumstance to which the contracting entity may allude as the reason forhis inability to conclude or fulfill the contract [Paragraph d) of Subsection (1) of Section 76, Subsection (9) ofSection 124], moreover, the contracting entity may render the conclusion of the support agreement, or its conclusionin a specific amount as a condition precedent for the contract awarded upon the public procurement procedure toenter into effect.

Time Limit for the Receipt of Tenders and for Participation, Amendment and

Withdrawal of Contract Notices and Tender Documents

Section 41

(1) Contracting entities are required to set the time limits for the receipt of tenders and for participation in due

consideration of the minimum time limits prescribed for the specific types of procedures, and also if this Act doesnot provide for the minimum time limit, they shall in all cases be sufficiently long to permit responsive tendering andfor drawing up the tender or request to participate in the light of the complexity of the tender to be submitted and thetype of documents tenderers and candidate tenderers are required to submit.

(2) Contracting entities may extend - in justified cases - the time limit for participation stipulated in the noticepublished for setting the procedure in motion on one occasion; the time limit may not be reduced.

(3) If the notice for setting the procedure in motion has been published, the new deadline shall be published priorto the expiration of the initial deadline along with the reason for extension. In procedures opened without prior

publication of a notice, economic operators invited to submit a tender or to participate [Subsection (1) of Section 38]are to be informed directly and simultaneously before the expiry of the initial deadline.

(4) The provisions of Subsections (2)-(3) shall also apply to procedures comprising more than one stage,specifically to the tendering stage, in which case contracting entities shall inform the economic operators invited tosubmit a tender directly and simultaneously before the expiry of the initial deadline, concerning the new deadline.

Section 42

(1) In open procedures, the contracting entity may revise the terms and conditions contained in the noticepublished for setting the procedure in motion and in the tender documents (Section 49), before the expiry of the timelimit for the receipt of tenders.


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(2) A new notice shall be published on the revised terms and conditions of the contract notice, or of the revisedterms and conditions of the tender documents and - where extensive changes are made in the tender documents - onthe amendment itself and a list of the modified sections, including the means and the deadline for making the revisedtender documents available and the place where they can be obtained, before the expiry of the time limit referred toin Subsection (1), and at the same time the economic operators having expressed their interest for the procedure, in

particular those who obtained the tender documents or requested additional information, shall be informed.

(3) If the contract notice or the tender documents are amended the time limit for the receipt of tenders shall beextended accordingly. The new deadline shall be fixed so as to allow sufficient time for the submission of tenders, inany case at least half of the minimum time limit prescribed by this Act from the date of dispatch of the notice ofchange. If such sufficient time is available also on the basis of the initial time limit for the receipt of tenders, theinitial time limit shall not be extended. If changes are made only in the tender documents and the time limit for thereceipt of tenders need not be extended, a notice shall not be published - by way of derogation from Subsection (2) -,it shall suffice to inform the economic operators who have received the tender documents concerning the amendmentor the availability of tender documents.

(4) Where extensive changes are made in the tender documents, the consolidated version of the tender documents,as amended, shall be made available in accordance with the relevant provisions of Sections 50-51, for no additionalcharge. Where a design, technical specifications or itemized schedule of works, comprising an integral part of thetender documents remains unaltered, it shall not be delivered with the consolidated version of the tender documents.

(5) In negotiated procedures without prior publication of a contract notice Subsections (1)-(4) shall apply, whereeconomic operators invited to submit a tender are to be informed directly and simultaneously before the expiry of theinitial deadline referred to in Subsection (1), in lieu of publishing a notice, and the extended time limit for the receiptof tenders shall in all cases be sufficiently long from the time of dispatch of the notice of amendment to permitresponsive tendering.

Section 43

(1) In restricted procedures and in negotiated procedures with prior publication of a contract notice the contractingentity shall - in accordance with Subsections (1)-(4) of Section 42 - be able to amend the invitation to participateduring the first stage, and the tender documents if the tender documents had been made available during the

participation stage, and in competitive dialogue procedures the invitation to participate and the descriptivedocuments before the expiry of the time limit for participation, where the time limit for the receipt of tenders andtender documents shall also be construed, respectively, as the time limit for participation and descriptive documents.

(2) During the tendering stage of restricted procedures and negotiated procedures with prior publication of acontract notice, and competitive dialogue procedures the contracting entity shall be able to modify the invitation totender and the tender documents (descriptive documents) before the expiry of the time limit for the receipt of tenders,of which the economic operators invited to submit a tender must be notified directly and simultaneously.

(3) During the tendering stage of restricted procedures any section of the invitation to tender or the tenderdocuments which have been included in the invitation to participate may not be amended.

(4) In negotiated procedures with prior publication of a contract notice and in competitive dialogue procedures theinvitation to tender or the tender documents (descriptive documents)