Törvények
Act CXLIII of 2015 on Public Procurement
Part Six - Judical Remedies Available for Public Procurement
Chapter XXI - Rules Pertaining to Review Procedures (144-177. §)
144. §
1. Against acts or defaults in violation of the legislation applicable to public procurements, procurement procedures, works or service concessions, as well as concession award procedures, judicial remedy pursuant to the provisions of this Part shall be available.
2. Jurisdiction shall be reserved to the court in civil-law claims related to procurement procedures, concession award procedures, contracts concluded pursuant to procurement procedures, as well as works or service concessions and the amendment thereto or the performance thereof.
3. Wherever this Part refers to public procurement or procurement procedure, such reference shall also include concession award procedure and design contest.
General provisions pertaining to the proceedings of the Public Procurement Arbitration Board
1. The provisions of Act CXL of 2004 on the General Rules of Administrative Proceedings and Services (hereinafter referred to as 'AP') shall apply to the proceedings of the Public Procurement Arbitration Board, unless otherwise provided by this Act or the government decree based on the empowerment of this Act.
2. Proceedings initiated against any infringement of the legislative provisions applicable to public procurements, procurement procedures, works or service concessions and concession award procedures, including the proceeding initiated against the rejection of the request for prequalification and the deletion from the prequalification list specified in the separate act of legislation referred to in Article 21(4) (hereinafter referred to as 'review procedures initiated in prequalification cases'), shall fall within the competence of the Public Procurement Arbitration Board, with regard to procurement procedures or concessions award procedures.
3. With the exception of civil-law claims related to the amendment to or performance of contracts, the Public Procurement Arbitration Board shall have the competence to conduct proceedings initiated against an amendment to or the performance of contracts, which were concluded on the basis of a procurement procedure or concession award procedure, in a manner violating this Act or the Gov. Decree based on the empowerment of this Act, as well as proceedings initiated against any misconduct or failure violating the procedural rules laid down independently by the contracting authority in compliance with Article 117.
4. Jurisdiction shall also be reserved to the Public Procurement Arbitration Board in legal disputes related to infringements within the meaning of paragraph 1 and 2, committed by any organisation or natural person applying this Act on a voluntary basis.
5. The Public Procurement Arbitration Board shall have jurisdiction in the whole territory of Hungary.
6. In the course of review procedures related to non-application of this Act, the Public Procurement Arbitration Board may not review the decision taken by the competent Committee of the Parliament to grant an exemption from the application of this Act. The Public Procurement Arbitration Board may have jurisdiction over the infringements of rules on defence and security related procurements, furthermore, procurements, procurement procedures which concern qualified data and the fundamental security and national security interests of the country, or whose execution must be accompanied by special security measures, if so required by law.
7. Representation by an accredited public procurement consultant, a legal advisor or a lawyer is mandatory in review procedures before the Public Procurement Arbitration Board.
Public procurement commissioners
1. In the cases determined in Article 145(2)–(4) (hereinafter referred to as 'public procurement cases'), with the exception described in paragraph 4, the Public Procurement Arbitration Board shall act in a panel consisting of three public procurement commissioners, passing its decision by a majority vote.
2. The members and the president of the acting panel shall be appointed by the Chairperson of the Public Procurement Arbitration Board. At least two of the appointed members of the panel handling the case shall have the bar examination, in the case of public procurement cases affected by European Union support at least one of the members shall have experience in public contracts carried out using subsidies and one of the members shall have a degree in higher education closely related to the subject-matter of the case. The president of the acting panel shall only be a public procurement commissioner who has obtained the Bar examination.
3. The president of the acting panel shall be responsible for preparing and presiding over the proceeding. Apart from the interim measures and decrees resulting in the closure of the public procurement case [Articles 151(5) and (6) and Articles 30 and 31(1) of the AP], the decision on the extension of the procedure [Article 158(1)] and the decision on the substance of the public procurement case (hereinafter referred to as 'substantial decision') [(Article 165], the president of the acting panel may take any measures and make any decisions which, under the provisions of this Act, fall within the competence of the Public Procurement Arbitration Board.
4. In matters specified in Article 153(1)(a)-(b), a single public procurement commissioner of the Public Procurement Arbitration Board shall proceed. Only public procurement commissioners having qualified for the Bar can be appointed as single acting commissioners by the Chairperson of the Public Procurement Arbitration Board. Any reference in this Act to the acting panel or president shall also include single acting commissioners. (This amendment entered into force on 1 January 2017.)
1. In addition to the cases specified in Article 42 (1) and (3) of the AP, the public procurement commissioner shall be prohibited from acting in the public procurement case, if
he has ownership of or indirectly owns a share exceeding 50% in the contracting authority or in an entity which has unlawfully failed to adopt the procurement procedure in its procurement, or own a share in a tenderer or in any other interested entity having initiated the procedure (hereinafter jointly referred to as 'client organisation');
he has ownership of or indirectly owns a share exceeding 50% in an entity which maintains regular business relations with the client organisation;
he has been an employee of the client organisation, or has been in any other legal relationship for the purpose of employment therewith, or has held a membership therein, or has been an executive officer or a member of the supervisory board, or has had ownership thereof or indirectly owned a share exceeding 50% therein within the last two years preceding the commencement of the review procedure.
2. Public procurement commissioners shall be prohibited from acting in a public procurement case, if any of their relatives living in the same household[1]
is employed by, or has any other legal relationship for the purpose of employment with the client entity or is a member thereof, or an executive officer or board member thereof;
has ownership of or indirectly owns a share exceeding 50% in the client entity;
is employed by, or has any other legal relationship for the purpose of employment with or is a member of, or an executive officer or board member of an entity which maintains regular business relations with the client entity, or has ownership thereof or indirectly own a share exceeding 50% therein;
works as a civil servant, governmental official, state official for an entity which is either responsible for the supervision of the client entity or is subordinated to it, or has been granting the client entity any support or exclusive rights[2].
3. The public procurement commissioner shall notify without delay and not later than within 3 (three) days the Chairperson of the Public Procurement Arbitration Board, if he is subject to any ground for exclusion pursuant to this Article or Article 42 (1) or (3) of the AP. The public procurement commissioner shall assume disciplinary and financial liability for any failure of or delay in filing such notification.
4. The decision in exclusion cases shall be made by the Chairperson of the Public Procurement Arbitration Board. Where the Chairperson of the Public Procurement Arbitration Board participates in the proceeding as a member of the acting panel, the chairperson of the Public Procurement Authority shall decide on his exclusion.
5. For the purposes of this Act, indirect holding shall mean a share held through the share of another organisation having a share in the client organisation (hereinafter referred to as the 'intermediate organisation). The proportion of the indirect holding is to be calculated by multiplying the share owned by the entity - which has that indirect holding - in the intermediate organisation by the share owned by the intermediate organisation in the client organisation. Where the share in the intermediate organisation exceeds 50%, it shall be considered full ownership.
[1] This amendment entered into force on 12 December 2015.
[2] This amendment entered into force on 1 July 2016.
Review procedures
1. The Public Procurement Arbitration Board shall proceed upon application or ex officio.
2. An application may be submitted by the contracting authority, the tenderer, in the case of a joint tender any of the tenderers, the candidate, in the case of a joint request to participate any of the candidates, or any other interested party whose right or legitimate interest is being harmed or risks being harmed by an activity or default which is in conflict with this Act. Chambers or representative associations having an activity related to the subject-matter of procurement may submit an application regarding the illegal nature of the contract notice, the invitation for submission of tenders, the invitation to participate, the procurement documents or any amendment thereto or the illegal nature of the information specified in Article 113(1). (Those included in this paragraph are hereinafter jointly referred to as 'applicant'.)
3. The application may be submitted, subject to the derogation referred to in paragraphs 4-5, within fifteen days from the date when the applicant learned of the infringement and in cases of infringing decisions closing a procurement procedure within ten days from the date when the applicant learned of the infringement. No application may be submitted more than 90 days following the occurrence of the infringement.
4. Contrary to the provision set out in paragraph 3, in the case of a procedure under Article 115, the application may be submitted within fifteen days from the date when the applicant learned of the infringement and in cases of infringing decisions closing a procurement procedure within five days from the date when the applicant learned of the infringement. No application may be submitted more than 90 days following the occurrence of the infringement.
5. The application related to the contract notice, the invitation to tender or the invitation to participate, the procurement documents or their modification may be submitted not later than five days before the expiry of the, in case modified, time limit to submit tenders or time limit to participate, however if the time limit stipulated in paragraph 3 or 4 expires later, the applicant is entitled to submit its application till the date stipulated in paragraph 3 and 4, respectively. As regards the contract notice, the invitation to tender or the invitation to participate, the procurement documents or any amendment thereto the contracting authority may submit an application regarding an infringement committed by itself, by the date of sending of the written summary concerning the tenders.
6. No separate application for review may be submitted in respect of an infringing procedural act under Article 69(4)-(7), the application related to that infringement may be included in the application for review against the unlawful decision closing the procurement procedure. The application in respect of an infringing procedural act under Article 69(4)-(7) does not constitute an element of application other than the one related to the unlawful decision closing the procurement procedure and, when calculating the time limit specified in paragraphs 3-4, the date when the applicant learned of the infringement and the date when the infringement was committed shall be the date to be taken into account in the case of the application for review against the unlawful decision closing the procurement procedure.
7. When compliance with the time limit referred to in paragraphs 3-4 is examined, the infringement shall be deemed to have become known at:
the date of the publication of the notice launching the procurement procedure and the information specified in Article 113(1) with unlawful contents or the receipt of the direct invitation with unlawful contents or, in the case of procurement documents with unlawful contents the accessibility thereof;
where a notice is dispatched after the expiry of the relevant time limit the fifteenth day after the publication of the notice, where a notice concerning the withdrawal of the information specified in Article 113(1) is sent to the Public Procurement Authority after the expiry of the relevant time limit the fifteenth day after the publication of the notice on the homepage of the Public Procurement Authority;
in relation to the infringement in the decision closing the procurement procedure in connection with the documents reviewed the date of closing the access to documents for review, if the applicant has had access to the tender(s) at the contracting authority or the Public Procurement Arbitration Board within ten days following the receipt of the written summary;
where preliminary dispute settlement has been requested in relation to the infringement referred to in the application an
(da) the contracting authority has sent its position on time but no further measure has been made, the date of sending the position of the contracting authority;
(db) the contracting authority failed to send its position within the relevant time limit, the date of expiry of the time limit for sending the position of the contracting authority;
in the case of an amendment to or performance of a contract, which was concluded on the basis of a procurement procedure, in violation of this Act, the thirtieth day after the publication of the notice concerning the amendment of the contract or after the publication of the data concerning performance [Article 43(1)(f)] in the database maintained by the Public Procurement Authority or, if the publication in the Public Procurement Database is not possible, on the contracting authority's homepage or on the homepage of its maintaining entity[1].
in the case of the notice launching the procurement procedure and the information specified in Article 113(1) with unlawful contents the date of publication of the notice or information, in case of a direct invitation the date when the invitation was sent;
where the notice is dispatched or the information specified in Article 113(1) is sent after the expiry of the relevant time limit the date of publication of the notice or information;
in case of a procurement without the conduct of a procurement procedure the date of the conclusion of the contract, or if this date cannot be established, the commencement of its performance by either party.
9. If the applicant learned that the procurement was conducted without the conduct of a procurement procedure after the expiry of the time limit set out in paragraphs 3-4, the application may be submitted within one year following the conclusion of the contract or, if it cannot be established, following the date when any of the parties began to perform the contract.
10. Failing to meet the time limits set out in paragraphs 3 and 9 shall result in the forfeiture of rights.
11. The Public Procurement Arbitration Board shall publish without delay the designation and subject-matter of the procedure concerned by the application, the indication of the names of the parties and the date of receipt of the application on the homepage of the Public Procurement Authority following the submission of the application.
12. Prior to the submission of the application, the applicant specified in paragraph 1 shall notify the contracting authority or the procurer of this fact – by designating the infringement assumed by him – in the same way as the application was submitted by him.
1. The application shall state:
the name and seat (residence) of the applicant and its representative, and the facts supporting the eligibility of the applicant;
the name and seat of the contracting authority of the procurement procedure concerned in the application, the subject-matter of the procurement and, in the case of division of the contract into lots, the lot concerned by the remedy, or, in the case of a purchase carried out without the conduct of a procurement procedure the name, and seat of the purchaser and the subject-matter of the purchase;
the date when the infringement occurred and the date when the applicant learnt thereof, in such a way that allows clear identification as regards each element of the application;
the infringed provision of law in such a way that allows clear identification as regards each element of the application;
the motion for the decision of the Public Procurement Arbitration Board and the reasons for such a decision in such a way that allows clear identification as regards each element of the application;
the motion for ordering an interim measure (Article 156) and the reasons therefor;
the name and seat (residence) known to the applicant of any entities possibly interested in the public procurement case;
the conduct of the preliminary dispute settlement, if any, its results and the answer of the contracting authority, which shall be attached to the application.
2. The number of copies of the application which are to be lodged shall be the number of potential parties concerned in the proceedings as can be known to the applicant, plus one.
3. An electronic version of the submitted application, which was written using IT tools and may be edited, shall be made available to the Public Procurement Arbitration Board and, if it is submitted by email, the receipt thereof shall be confirmed by the Public Procurement Arbitration Board within one business day.
1. The proceeding of the Public Procurement Arbitration Board initiated with an application shall be subject to the payment of an administrative service fee, the level of which shall be set, as a proportion of the estimated value of the public contract, in a Decree issued by the Minister competent in public procurements. The document showing that the fee has been paid shall be attached to the application.
2. Chambers having an activity related to the subject-matter of the procurement shall be exempted from the payment of the fee specified in paragraph 1 in the case of review procedures for the illegal nature of the contract notice, the invitation for submission of tenders, the invitation to participate, the procurement documents or any amendment thereto or the illegal nature of the information specified in Article 113(1). In review procedures, where the application is submitted by the contracting authority in respect of its own unlawful activity or omission, the contracting authority shall be exempted from the payment of the fee, specified in paragraph 1, in relation to the application submitted by the contracting authority.
3. If, in the course of the procedure, a new element is added by the applicant to the application for review, the administrative service fee shall be paid by the applicant, at the request of the Public Procurement Arbitration Board, in respect of the new element of application as well. If the applicant fails to adjust the amount of the administrative service fee, the Public Procurement Arbitration Board is not obliged to act in respect of the new element of application.
1. The review procedure shall be launched by the Public Procurement Arbitration Board, at the latest, on the business day following the day of receipt of the application pursuant to Articles 148(1)-(9), 149(1)-(2) and 150(1)-(2).
2. If the application fails to include the information as provided for in Article 149(1) or there is no supporting document to show that the fee provided for in Article 150(1) has been paid or no authorisation for the authorised representative has accompanied the application, the Public Procurement Arbitration Board shall call upon the applicant to supply the missing information or document(s) within five days and, at the same time, warns the applicant that, should he submit an incomplete application again, such application shall be dismissed by the Public Procurement Arbitration Board. No certification may be accepted in the case of the failure to meet the time limit to supply missing documents or information.
3. Where the estimated value of the public contract may not be known to the applicant on the basis of the documents of the procurement procedure concerned by the review procedure, the applicant shall refer to this circumstance in its application for review. In that case, the Public Procurement Arbitration Board, on the basis of the data available, informs the applicant, in a request for the submission of missing information, of the amount of the estimated value on which the administrative service fee is based.
4. When establishing the estimated value - in the case of the division of the contract into lots the value of the lot concerned by the remedy - the Public Procurement Arbitration Board may request that the contracting authority supply information and the contracting authority shall do so within two business day.
5. The Public Procurement Arbitration Board shall dismiss the application within five days without a substantial examination if - in addition to the cases set out in paragraph 30 of the AP - it concludes that
the applicant failed to submit the requested missing information within the defined time limit or it has submitted an incomplete application again;
the contracting authority has legally withdrawn its notice, invitation launching the procurement procedure or the information specified in Article 113(1).
6. The Public Procurement Arbitration Board shall dismiss the review proceeding, where the application should have been dismissed without substantial examination according to paragraph 5, but the ground for dismissing the application was learned by the Public Procurement Arbitration Board only after the proceeding had started.
7. The applicant may withdraw his application initiating the proceeding or certain elements thereof until a decision has been passed [Article 165] on the substance of the case.
8. If the Public Procurement Arbitration Board rejects the application for judicial remedy without a substantial examination or dismisses the review proceeding on the basis of a ground set out in paragraph 6, the administrative service fee shall be reimbursed to the applicant. If the application or certain elements thereof is/are withdrawn, the applicant may claim the reimbursement of the administrative service fee taking account of the elements maintained and in line with the stipulations set out in a separate act of legislation.
1. An ex officio proceeding of the Public Procurement Arbitration Board may be initiated by the following entities or persons on the grounds that they have, in the performance of their duties, learned of any behaviour or default in violation of this Act:
the President of the Public Procurement Council;
the State Audit Office;
the government body responsible for control;
the body responsible for the legal supervision of local governments;
the Hungarian State Treasury;
the Commissioner for Fundamental Rights;
the entity granting support for the public procurement, or the entity co-operating pursuant to law in the use of the support;
the central purchasing body appointed by the Government;
the Hungarian Competition Authority;
the body auditing European Union supports;
the minister competent in the supervision of the national property;
the public prosecutor;
the minister competent in public procurements.
2. The ex officio proceeding of the Public Procurement Arbitration Board may be initiated by a person or entity specified in paragraph 1 within sixty days from learning of the infringement but
not later than within three years after the occurrence of the infringement,
in the case of procurements without the conduct of a procurement procedure, contrary to point (a), within five years from the conclusion of the contract or, if it cannot be established, from the start of performance by any of the parties or
in the case of public procurements to be realised using support, contrary to points (a) and (b), within the period required to keeping documents as stipulated in the relevant separate act of legislation on granting and use of the given support, however, that period may not be shorter than five years after the occurrence of the infringement, in the case of procurements without the conduct of a procurement procedure, within five years from the conclusion of the contract or, if it cannot be established, from the start of performance by any of the parties.
3. Unless otherwise provided in paragraph 2, Article 148(8) shall apply accordingly in respect of the date of committing the infringement. Contrary to paragraph 2, in the case set out in Article 153(1)(d), the President of the Public Procurement Authority may initiate the ex officio proceeding of the Public Procurement Arbitration Board within the time limit set in Article 189(1).
4. The document initiating the ex officio proceeding of the Public Procurement Arbitration Board shall contain the data listed in Article 149(1)(a)–(d) and (g), and a proposal may be made concerning points (e) and (f). The initiating document shall be accompanied by copies of the documents available in relation to the purchase or public procurement involving an infringement. An electronic version of the submitted initiating document, which was written using IT tools and may be edited, shall be made available to the Public Procurement Arbitration Board and, if it is submitted by email, the receipt thereof shall be confirmed by the Public Procurement Arbitration Board within one business day.
5. The Public Procurement Arbitration Board shall launch the proceeding not later than on the first business day following the receipt of the initiation complying with paragraph 1.
6. If the initiation does not contain the data set out in paragraph 4, the Public Procurement Arbitration Board shall call upon the entity or person concerned to provide the missing information. Article 151(2) shall apply accordingly to the supply of missing information.
7. The Public Procurement Arbitration Board shall publish without delay the designation and subject-matter of the procedure concerned by the initiation, the indication of the names of the parties and the date of receipt of the initiation on the homepage of the Public Procurement Authority following the submission of the initiation.
8. Dismissal of the initiation without substantive examination and termination of the proceeding shall be governed by Article 151(5)-(8) as appropriate.
1. The President of the Public Procurement Authority shall launch the ex officio proceeding of the Public Procurement Arbitration Board
if the contracting authority fails to publish the annual statistical summary in the Public Procurement Database by the time limit set in a separate act of legislation, as from the date of the request of the President of the Authority,
if the given entity does not fulfil its obligations of registration and declaration on the list of contracting authorities covered by this Act, notwithstanding a request from the Public Procurement Authority,
if, on the basis of the outcome of the official control according to Article 187(2)(j) or without the carrying out of the official control, there is indicative evidence that an amendment to or the performance of the contract violated this Act, in particular where an infringement specified in Article 142(2) was committed or
if, upon the examination of the documents sent to the Public Procurement Authority in relation to the launching of a negotiated procedure without prior publication of a contract notice, there are reasonable grounds to consider that rules and principles pertaining to public procurement and procurement procedures have been violated.
2. In addition to paragraph 1, the President of the Public Procurement Authority may initiate the ex officio proceeding of the Public Procurement Arbitration Board, in particular, where the contracting authority fails to publish, within the time limit set, the data, information, documents specified in Article 43(1)(a)-(f) in the Public Procurement Database, in spite of a request by the Public Procurement Authority.
3. Article 152(2)-(8) shall apply to the initiation set out in paragraphs 1-2.
1. The Public Procurement Arbitration Board shall notify the parties and any parties interested in the public procurement case of the launch of the proceeding, and shall request them to submit their comments within five days. The Public Procurement Arbitration Board shall attach the application to the notice or, in cases of ex officio launched proceedings the document initiating this proceeding.
2. Furthermore, at the time of the notification, the Public Procurement Arbitration Board shall call upon the contracting authority of the relevant procurement procedure or the purchaser who carried out a purchase without the conduct of a procurement procedure to supply within five days all documents related to the public procurement or purchase in question or, where it is not necessary, the documents required by the Arbitration Board. When the application is submitted by the contracting authority, the available documents shall be supplied together with the application. At the same time as the documents, an electronic version of the documents, which was written using IT tools and may be edited, shall also be sent, if available in such format. The Public Procurement Arbitration Board shall confirm within one business day the receipt of the editable version of the documents, where those documents have been submitted by email.
3. Where a proceeding is launched by the Public Procurement Arbitration Board, the contracting authority may suspend the ongoing procurement procedure and it shall notify the Public Procurement Arbitration Board thereof. The suspension shall extend any time limits running by the duration of the suspension period.
1. The Public Procurement Arbitration Board may order that certain cases being dealt with by it be consolidated if their subjects are interrelated or settling such cases collectively is justified by practical, economic or other procedural considerations.
2. The Public Procurement Arbitration Board may order that certain parts or elements of application of a given case being dealt with by it be separated if settling such cases separately is justified by practical, economic or other procedural considerations.
3. In case the applicant has more issues (elements) in the application concerning the same procurement procedure the Public Procurement Arbitration Board may make its decision at the same time. The Public Procurement Arbitration Board may make a single compound decision.
1. In an ongoing review procedure, until conclusion of the contract based on the procurement procedure (or purchase) involved in the review procedure, the Public Procurement Arbitration Board may, on request or ex officio, order interim measures, having regard to all the circumstances of the case, if there is the likelihood of an infringement of the legal provisions or principles pertaining to the public procurement or the procurement procedure has been committed or there is a risk that an infringement will be committed.
2. As an interim measure, the Public Procurement Arbitration Board shall
order the suspension of the procurement procedure;
call upon the contracting authority involved in the procurement procedure to invite the applicant seeking a remedy to take part in the procurement procedure.
3. Suspension of the procurement procedure shall result in the extension of the ongoing periods of time prescribed in the invitation by the duration of the suspension period.
4. In order to protect a pressing, particularly vital interest or public interest (including an issue of national economy) the Public Procurement Arbitration Board may allow the conclusion of the contract in its decree, upon the request of the contracting authority, if the benefits exceed the drawbacks of the conclusion of the contract. The pressing, particularly vital interest or public interest (the issue of national economy) shall be stated in the application and the documents giving grounds for the application shall be submitted together with the application. For the purposes of this paragraph, public interest means in particular the maintenance of the uninterrupted security of conduct of the public utilities activity. The Arbitration Board makes a decision within five days following the receipt of the application, no review procedure shall lie from the decree.
5. The Public Procurement Arbitration Board shall ensure without delay the publication of its decree on the permission for the conclusion of the contract on the homepage of the Public Procurement Authority.
Initiating the preliminary ruling procedure of the Court of Justice of the European Union
1. If the Public Procurement Arbitration Board initiates a preliminary decision-making procedure of the Court of Justice of the European Union in accordance with the rules laid down in the TFEU, such initiative shall be subject of an individual decree and, at the same time, the Public Procurement Arbitration Board shall suspend the proceeding in question. In its decree, the Public Procurement Arbitration Board shall identify the issue requiring a preliminary decision by the Court of Justice of the European Union and recite the facts and the relevant Hungarian legislation to the extent required for addressing the issue raised. At the same time when the decree is delivered to the Court of Justice of the European Union, the Public Procurement Arbitration Board shall also supply a copy thereof to the Minister competent in justice and the Minister competent in public procurements for their information.
Scope of investigation by the Public Procurement Arbitration Board
1. If, during the proceeding and before a substantial decision [Article 165] is taken, the Public Procurement Arbitration Board learns of an infringement additional to those already being investigated pursuant to the application or initiation, it may proceed ex officio also in respect of such an infringement. The proceeding may only be extended where the disclosed infringement distorts competition or prejudices the public nature of the competition, the equal opportunities of tenderers or substantially influenced the decision of the contracting authority. Decision on the extension of the proceeding shall be taken by the proceeding panel.
2. In case an application is being withdrawn, the Public Procurement Arbitration Board shall continue the proceeding, if, on the basis of the available data, a serious infringement is likely to have taken place.
3. Should the Public Procurement Arbitration Board, in the course of the proceeding, detect any circumstances which might suggest non-compliance with another act of legislation, it shall report such violation to the competent authority, in particular to the one responsible for prosecution, the State Audit Office, an internal audit body designated by the government or the Hungarian Competition Authority.
1. Where the substantial decision on the public procurement case in respect of the infringement pursuant to Article 142(2) depends on a preliminary ruling on whether a breach of contract was committed, the Public Procurement Arbitration Board shall bring an action for the establishment of the breach of contract and, at the same time, shall suspend the procedure. The Public Procurement Arbitration Board is entitled to exemption from all court costs.
2. The Public Procurement Arbitration Board shall publish a notification about initiating the action set out in paragraph 1 on the homepage of the Public Procurement Authority. The notification shall contain the naming of the case in question (the indication of the related procurement procedure), the date of submission of the claim and the naming of the parties to the proceedings.
1. The Public Procurement Arbitration Board shall make arrangements to ensure that the applicant, the party initiating the procedure and the opposing party can reveal all new facts in the course of the proceeding, as well as all applications and statements filed, and enable both parties to put forward their points of view thereon.
2. The Public Procurement Arbitration Board shall send the comments of the parties and the entities interested in the public procurement case according to Article 154(1) to the adverse party and to any other interested entities, noting that they shall be bound to make their statements thereon not later than within three days. In addition, the Public Procurement Arbitration Board may call upon, at any time, the parties and any parties interested in the public procurement case to make a statement or give their comments, allowing an appropriate period. At the request of the Public Procurement Arbitration Board, an electronic version of the statements and comments as well as other documents, which were written using IT tools and may be edited, shall also be made available to the Public Procurement Arbitration Board, if available in such format. The Public Procurement Arbitration Board shall confirm within one business day the receipt of the editable version of the documents, if those documents are submitted by email.
3. If the Public Procurement Arbitration Board does not hold a hearing in the given case, it can give a date by which the parties and any other interested entities must make all substantial statements and comments, by notifying them. If the Public Procurement Arbitration Board holds a hearing in the given case, the parties and any other interested entities must make all substantial statements, comments before the hearing.
4. After the date specified in paragraph 3 or subsequent to the hearing, the parties and any other interested entities may only make further comments or statements, if a request is made by the Public Procurement Arbitration Board therefor. Any further comment or statement made after the date specified in paragraph 3 or subsequent to the hearing of the given case, without the request of the Public Procurement Arbitration Board, shall not be taken into consideration by the Public Procurement Arbitration Board for its decision.
1. The Public Procurement Arbitration Board shall settle the public procurement case without a hearing, except where it is absolutely necessary to hold a hearing, in particular, for the sake of the parties' rights, the clarification of the facts, an informed decision-making in the course of which all the relevant circumstances are taken into account. No hearing may be held, if the review procedure is limited to the establishment whether the references presented by the economic operator in the procurement procedure are technically equivalent to the requirements specified in the notice launching the procedure.
2. The hearing shall be held by the Public Procurement Arbitration Board not later than fifteen days after the starting of the proceeding.
3. At the hearing held by the Public Procurement Arbitration Board, in addition to the parties to the proceedings, other interested persons may attend in person or through their representatives, and they may make comments, and bring forward their evidence until the hearing is closed.
4. The hearing shall be held in public. The Public Procurement Arbitration Board may, by its reasoned decree, exclude the public from the hearing or a part of thereof, if requested or ex officio, if this is necessitated in order to keep a qualified data, business secret or any other secrets defined as such in a separate act of legislation.
5. The Public Procurement Arbitration Board shall send the minutes of the hearing to the parties and any other interested entities within five days from the date of the hearing.
1. The applicant or the initiating party of the public procurement case, the opposing party as well as their representatives shall have the right within ten days from the initiation of the proceeding to have access to and make copies or notes of all documents drawn up in the course of the procurement procedure or the review procedure, furthermore, any members of the Public Procurement Authority shall have the right at any time during the proceeding to do so.
2. The contracting authority, the tenderer and the candidate may request, referring to the protection of business secrets, that a prohibition or restriction be imposed on access to documents or data by any persons specified in paragraph 1 in the case of documents not considered having public interest or information made public out of public interest. 3. If certain specified documents are included by the tenderer or the candidate separately, as a business secret in the tender or in the request to participate, or, if the tenderer or the candidate requests to treat any other document submitted by him in the course of the procurement procedure as a business secret, it shall be regarded as a request for the prohibition imposed on access to these documents by any persons specified in paragraph 1.
4. The Public Procurement Arbitration Board shall examine if the circumstances justifying the prohibition or the restriction imposed on access to these documents exist and, when making a decision on an application to this effect, it may at the same time require the relevant party to prepare a version of the document in question which will not include any confidential business information.
5. Access to documents drawn up in the course of the procurement procedure or the review procedure, the making of copies and notes thereof by persons other than those referred to in paragraph 1 shall only be granted to a person who has legitimate interest in getting to know the documents and his access to documents does not violate any rule applicable to the protection of qualified data.
6. Documents containing qualified data shall not be accessed in the absence of the permission for use. Neither shall other documents containing other information protected by law be accessed where such access is prohibited by the legislation regulating the protection of the relevant information, or the entity specified in paragraph 1 and requesting access is not prevented from exercising its right for judicial remedy by not being familiar with the protected information.
7. Minutes taken of a hearing from which the public has been excluded in order to protect qualified data must not be copied or have notes made of. Even access to such documents – as specified in the Act of Protection of qualified data – is subject to the terms and conditions set by the Chairperson of the Arbitration Board.
8. Access to the documents shall be subject to the permission of the Public Procurement Arbitration Board, taking into consideration the provisions set out in paragraphs 1-7.
1. The Public Procurement Arbitration Board may impose a procedural fine from HUF 50.000 up to HUF 500.000 on the applicant or any other person taking part in the review procedure if such participant
has supplied false data or has failed to disclose data relevant to the judgement of the case;
has failed to supply the required information or has supplied it after the expiry of the time limit set therefor;
has failed to submit a document or has submitted it after the expiry of the time limit set therefor or has submitted a document in a format other than an electronic form, which may be edited, in the cases provided for by this Act;
has been hindering access to documents related to its business, professional or public procurement activities;
has made a clearly unsubstantiated statement with respect to exclusion, or makes a repeated unsubstantiated statement against the same public procurement commissioner during the same procedure.
2. An individual remedy of the decree imposing a procedural fine may be sought under Article 169. Appeal for such an individual remedy shall have a suspensory effect on the execution of the decree.
1. When no hearing is held in the case, the Public Procurement Arbitration Board shall be required to finish the case within fifteen days countered from the launch of the proceeding, save for the case specified in paragraph 2.
2. If the Public Procurement Arbitration Board has held a hearing in the case, it shall be required to finish the case within twenty-five days counted from the launch of the proceeding, save for the case specified in paragraph 3.
3. The Public Procurement Arbitration Board shall conclude the case concerning an amendment or performance violating this Act of the contract concluded on the basis of the procurement procedure within sixty days from the launching of the procedure.
4. In the case of the consolidation of cases according to Article 155(1) the time limit for arrangement shall be aligned to the latest review procedure.
5. The time limit referred to in paragraphs 1 and 3 may be extended with up to 10 days on one occasion, in justified cases.
The parties who were notified of the launching of the procedure shall be notified of that extension not later than the date of expiry of the initial time limit set in accordance with paragraphs 1 to 3.
6. The parties may not have the right to apply for suspension of the proceedings.
Substantial decision of the Public Procurement Arbitration Board
1. The Public Procurement Arbitration Board shall make its decision in the name of the Public Procurement Authority.
2. In its decision the Public Procurement Arbitration Board
shall dismiss any unfounded applications;
in procedures launched or conducted ex officio shall state the lack of infringement;
shall state that an infringement has occurred;
shall state that an infringement has occurred and shall apply the legal consequences listed in paragraph 3;
shall, besides stating that an infringement has occurred, impose a fine in cases set out in paragraph 6;
shall state that an infringement has occurred and shall prohibit the tenderer, the subcontractor or any other entity or person who or which participated in the procurement procedure from participating in the procurement procedure.
3. If the Public Procurement Arbitration Board states in its decision that an infringement has occurred, it may
before the closure of the procurement procedure, call upon the person who committed the infringement to act in conformity with the rules laid down in this Act, or shall order that the contracting authority may take its decisions only subject to certain conditions;
declare void any decision made by the contracting authority either during the procurement procedure or as a decision closing that procedure, provided that no contract has been concluded yet on the basis of the decision in question;
order the removal of the tenderer from the official list of approved tenderers;
impose a fine on any organisation or person who or which has infringed the law or on any person or organisation that is liable for the infringement and has a legal relationship with the person or organisation liable for the infringement in question.
4. The amount of the fine specified in paragraph 3(d) shall be not more than 10% of the estimated value of the procurement procedure or, in the case of the division of the contract into lots, the lot concerned by the remedy, subject to the provisions set out in paragraph 11.
5. If a preliminary dispute settlement has been requested in relation to the infringement referred to in the application and the contracting authority has sent its position on the infringement but no further measure has been taken, the amount of the fine specified in paragraph 3(d) shall be not more than 15% of the estimated value of the procurement procedure or, in the case of the division of the contract into lots, the lot concerned by the remedy, subject to the provisions set out in paragraph 11.
6. The Public Procurement Arbitration Board, besides stating that an infringement has occurred, shall impose a fine, if
the infringement has occurred with the unlawful bypass of the procurement procedure;
the parties have concluded the contract with the infringement of the rules regarding the standstill period;
the contract has been concluded as a result of a negotiated procedure without prior publication of a contract notice and the criteria for the application of this type of procedure were not fulfilled;
the contracting authority failed to send previous notice to the Public Procurement Authority, in the case of a negotiated procedure without prior publication of a contract notice;
the ex officio proceeding has been initiated by the Chairperson of the Public Procurement Authority [Article 153] and the Public Procurement Arbitration Board states that there was an infringement.
7. The amount of the fine specified in paragraph 6 shall be not more than 15% of the estimated value of the procurement procedure or, in the case of the division of the contract into lots, the lot concerned by the remedy or, in the case of the unlawful bypass of the procurement procedure, the value of the contract, subject to the provisions set out in paragraph 11.
8. According to paragraph 2(f), the Public Procurement Arbitration Board shall state that an infringement has occurred and shall prohibit the tenderer, the subcontractor or any other entity or person who or which participated in the procurement procedure from participating in the procurement procedure for a period between 6 month and 3 years, subject to the provisions set out in paragraph 11, if
he has supplied false data, made false declaration in the course of the given procurement procedure or in relation thereto and is subject to the grounds for exclusion specified in Article 62(1)(i);
he attempted to wrongly influence the decision making process of the contracting authority in the given procedure or attempted to obtain any confidential information which would give him an undue advantage in the procurement procedure.
9. According to paragraph 2(f), the Public Procurement Arbitration Board shall state that an infringement has occurred and, subject to the provisions set out in paragraph 11, shall prohibit the tenderer, the subcontractor or any other entity or person who or which participated in the procurement procedure from participating in the procurement procedure if, in his case, the distortion of competition arising from any conflict of interest under Article 25 or his prior involvement in the preparation of the procurement procedure may not be effectively remedied by other measures, which are less coercive than the exclusion from the procedure.
10. For the purposes of paragraph 8, the Public Procurement Arbitration Board shall prohibit the tenderer, the subcontractor or any other entity or person who or which participated in the procurement procedure from participating in the procurement procedure or concluding the contract not only for the future but also in the procurement procedure examined and in any other procurement procedure in progress, if the results have not yet been sent in the procedures concerned. In the case provided for in paragraph 9, the Public Procurement Arbitration Board may prohibit the tenderer, the subcontractor or any other entity or person who or which participated in the procurement procedure from participating in the procurement procedure or concluding the contract only in the procurement procedure examined.
11. In determining whether a fine is to be imposed, in fixing the amount of the fine and setting the period of the exclusion, the Public Procurement Arbitration Board shall take into account all the circumstances relevant in the matter, in particular the importance of the offence committed, the subject-matter and value of the public procurement concerned, the effect of the offence on the decision closing the procurement procedure, the reoccurrence, if any, of the infringement of this Act, the liable person's readiness to cooperate in the proceedings, the length of time which elapsed between the committing of the offence and the launching of the review procedure, in the case of public procurements carried out using support the fact that, in the procedure of another authority, a sanction concerning the repayment of the support may be attached to the offence. When establishing the sum of the fine and setting the period of the exclusion, it shall also be taken into account whether the act of the offence has been manifestly deliberate.
12. If the Public Procurement Arbitration Board annuls the decision of the contracting authority having concluded the procedure, then the contracting authority shall make a new decision closing the procedure, within thirty days following the date when the decision becomes enforceable. If the procedure shall not presumably be unsuccessful, the contracting authority - before making its decision - shall obtain the statement of all tenderers having submitted valid tenders to the effect that they uphold their tenders, setting a time limit. In such cases where the tenderer has not made any statement, it shall be presumed that he does not maintain his tender. If the contracting authority made subject participation in the procedure to the condition of provision of a tender guarantee, tenderers who uphold their tenders shall certify that the tender guarantee is also upheld or is made available for the new term of the validity period set by the contracting authority.
13. If the Public Procurement Arbitration Board establishes in its decision pursuant this paragraph an infringement of the legislation applicable to public procurement or the procurement procedure, the contracting authority or the party entering into the contract as tenderer may, within thirty days from the service of the decision of the Public Procurement Arbitration Board, rescind the contract concluded pursuant to the relevant procurement procedure, provided that the infringement affected the decision concluding the procurement procedure.
Announcement and publication of the decision of the Public Procurement Arbitration Board
1. The decree on suspension of the procedure, the decree and the decision closing the public procurement case shall be delivered to the parties, as well as to other parties having an interest in the case. Where the decree on suspension of the procedure, the decree or the decision closing the public procurement case is related to a public procurement carried out using support, the decision shall also be delivered to the organisation providing that support for the public procurement.
2. The decree and the decision closing the public procurement case and the decree on the allowance of the conclusion of the contract [Article 156(4)] shall be published on the homepage of the Public Procurement Authority on the day of their drawing up. The substantial decision shall be published even if the Public Procurement Arbitration Board has excluded the public from the proceedings pursuant to Article 161(4).
3. The Public Procurement Arbitration Board shall publish the decision on the homepage, even if an application for a judicial review [Article 170] of the decision has been lodged, but it shall also include a reference to that fact.
4. In addition to the data specified in Article 148(11) and Article 156(5) of the application initiating the proceeding of the Public Procurement Arbitration Board and the substantial decision, the decree on the dismissal of the application without substantial examination, the decree on termination of the procedure, in the case of the judicial review of the substantial decision, the decision of the court shall be published on the homepage of the Public Procurement Authority on the day of their drawing up.
5. If the judicial review of the decision of the Public Procurement Arbitration Board is requested, the contracting authority may suspend the procedure or may postpone the conclusion of the contract until the court makes its final decision.
Review procedures for prequalification cases
1. The provisions pertaining to the procedure conducted by the Public Procurement Arbitration Board shall apply to review procedures for prequalification cases with the differences pursuant to paragraphs 2–4, as appropriate.
2. The applicant may lodge an appeal against the rejection of its prequalification application and its deletion from the pre-qualification list. Such appeal may be lodged within fifteen days of receiving written notification of the same by the contracting entity.
3. The appeal shall state:
the name, seat (residence) of the applicant and its representative;
the name and seat of the contracting entity operating the prequalification system covered by the appeal;
the date of receiving the contracting entity's written notification;
the legal provision violated;
the motion relating to the decision of the Public Procurement Arbitration Board, and its reasons.
4. In its decision, the Public Procurement Arbitration Board shall, besides stating that an infringement has taken place, declare void or change the contracting entity's decision.
Ensuring the uniformity of the decisions taken by the Public Procurement Arbitration Board
1. For the sake of the uniformity of the remedies procedures, a general council including the public procurement commissioners shall operate within the framework of the Public Procurement Arbitration Board. The representatives of the organisational unit responsible for the area of public procurement in the ministry headed by the minister responsible for public procurements as well as the representatives of the body auditing EU supports may participate in a consultative capacity in the meetings of the general council.
2. The Public Procurement Arbitration Board shall operate a council for the cases and groups of cases set out in the organisational and operational regulations. The college shall examine the practice of the Public Procurement Arbitration Board, monitor developments in the court's case-law and express its opinion on the disputed legal issues in order to enhance a uniform practice of review.
3. If the proceeding panel of the Public Procurement Arbitration Board has made a decision on a matter of principle, it shall be bound to present its decision to the Chairperson of the Public Procurement Arbitration Board. The Chairperson of the Public Procurement Arbitration Board shall present the decision concerning the matter of principle to the general council.
4. The Chairperson of the Public Procurement Arbitration Board continuously monitors the decision-making process of the Public Procurement Arbitration Board. If the Chairperson has knowledge of decision-makings by the proceeding panels on the basis of conflicting grounds of principles, he shall inform the general council thereof. The general council shall express an opinion on the issue of law in question for the sake of the uniform decision-making. Before expressing its opinion, the general council gives the bodies referred to in paragraph 1 the opportunity to state their views on the given issue of law, within a reasonable time limit, those views are not binding on the general council. The opinion expressed by the general council may only be departed from according to the provisions set out in paragraph 5. In case of agreement within the general council the Public Procurement Arbitration Board shall publish information of the new opinion of the general council on the homepage of the Public Procurement Authority.
5. If the proceeding panel of the Public Procurement Arbitration Board intends to depart from the contents of the opinion in relation to an issue of law, it shall notify the Chairperson of the Public Procurement Arbitration Board thereof. The Chairperson of the Public Procurement Arbitration Board shall present the envisaged decision to the council competent to deal with the given group of matters or the general council and shall ask for the opinion of the council or the general council. For the purposes of the decision-making, the proceeding panel shall be bound to wait for the opinion of the college or the general college, however, it is not bound by that opinion and it shall have the right to make a decision departing from the opinion. In case of mutual agreement between the proceeding panel and the council or general council the Public Procurement Arbitration Board shall publish information of the new opinion of the general council or the modification of the opinion on the homepage of the Public Procurement Authority.
6. The public procurement commissioners shall pursue their enforcement activities in line with the opinions issued by the general council.
7. Rules pertaining to the operation of the councils and the general council are laid down by the organisational and operational regulations of the Public Procurement Arbitration Board.
Review of decisions taken by the Public Procurement Arbitration Board
1. Individual review of decrees of the Public Procurement Arbitration Board made in the course of the proceedings shall be available, if the law so provides. Review shall be available pursuant to this Article also against decrees suspending the proceedings, decrees dismissing the application without substantial examination, as well as decrees dismissing the review proceeding.
2. Applications for a review may be submitted or sent by registered post to the Public Procurement Arbitration Board within eight days from the communication of the decision. Upon receipt of the application, the Public Procurement Arbitration Board shall forward it, together with the documents of the case, to the court without delay.
3. Applications for an individual review of a decision of the Public Procurement Arbitration Board made in the course of the proceedings shall be decided by the administrative and labour court by way of a priority treatment within the framework of a non-litigious proceeding. The Court may alter the decree of the Public Procurement Arbitration Board. No appeal or judicial review shall lie from the Court's relevant decree. 4. Unless otherwise required by this Act or the nature of the non-litigious proceeding, Chapter XX of Act III of 1952 on the Code of Civil Procedure (hereinafter referred to as 'CP') shall apply as appropriate to the proceedings of the court.
1. No appeal or application for retrial shall be brought against the substantial decision of the Public Procurement Arbitration Board. Anyone whose right or legitimate interest is being harmed by the decision of the Public Procurement Arbitration Board on the substance of the case, or the person or organisation requesting the proceeding of the Public Procurement Arbitration Board pursuant to Article 152, shall be entitled to bring an action before the court for its judicial review. The reason for asking review shall not only be the infringement of the Public Procurement Arbitration Board, but that circumstance as well if according to the claimant the Public Procurement Arbitration has not evaluated, qualified accordingly the previous procedure, decision of the requested with regard to the provisions of this Act.
2. The claim may only be submitted or sent by registered post to the Public Procurement Arbitration Board within fifteen days from the receipt of the decision.
3. The Public Procurement Arbitration Board shall forward the application together with the documents of the case – and with its statement on the contents of the application – to the court within five days, and at the same time it shall inform the court about the parties participating in the procedure of the Public Procurement Arbitration Board and about the interested parties concerning whom the decision contains a provision.
4. Any person who is not to be granted to act as a public procurement commissioner on the grounds set out in Article 147 shall be excluded from trying the case and shall not participate in it as a judge.
1. The court shall examine the application within eight days, and it shall send the application which is in accordance with the legislation together with the declaration of the Public Procurement Arbitration Board to the claimant.
2. If the application contains a request for the suspension of the execution of the decision, the court shall make a decision in this matter within five days following the receipt of the documents at the court and it shall send its decision to the parties without delay.
3. The court shall inform the opponent party and any parties interested in the public procurement case for whom the decision of the Public Procurement Arbitration Board contains an order, about the possibility to intervene within the time limit specified in paragraph (1), noting that the intervention shall be reported to the court within eight days following the receipt of the notification. Failing to meet this time limit no excuse shall be granted.
4. In the course of the legal proceeding a time limit of not more than eight days shall be given for the submission of the missing information of the applications. When justified, the time limit may be extended once with a period of eight days at most.
1. The court shall make its decision on the substance of the case without holding a hearing; however, upon the request of the parties the court shall hold a hearing. Holding a hearing may be requested by the claimant in his application and by the defendant in his declaration related to the application. In default of this, no certification may be accepted. The intervening trial shall be requested in accordance with Article 338(3) of the CP. For the adjudication without holding a trial Article 338(5), (7) and (8) of the CP shall apply.
2. Article 332/B of the CP shall be applied with the derogation that the first trial shall be hold within thirty days following the receipt of the documents at the court and if there is no need to conduct a procedure of evidence, or in the case of a procedure without a hearing the decision shall be made within this time limit. When counting the time limits the time period for the submission of the missing information shall not be taken into account.
3. The court may change the decision of the Public Procurement Arbitration Board - including the sum of the fine – and it may apply the legal consequences set out in Article 165(3), (6), (8) and (9).
4. The decision of the Public Procurement Arbitration Board may not be annulled by the court unless an infringement of the substantial rules on legal remedy proceedings having an effect on the substance of the case occurred in the proceeding of the Public Procurement Arbitration Board.
5. No appeal shall lie from the court's ruling except where the decision of the Public Procurement Arbitration Board is reversed by the court.
6. The decision of the court shall be served to the parties within fifteen days following the date on which it was given. The court shall send its decision applying Article 165(8) and (9) to the Public Procurement Authority.
Consolidated legal procedure for the review of the decision of the Public Procurement Arbitration Board and for the statement of the invalidity of contracts infringing regulations applicable to procur
1. The applicant shall request the review of the decision of the Public Procurement Arbitration Board and the statement of the invalidity of the contract on which the decision is based – due to the reasons specified in paragraph 137(1) – and the application of the legal consequences of the invalidity exclusively in one single legal procedure. The legal procedure shall be initiated against the Public Procurement Arbitration Board and the contracting parties. The application shall be submitted or sent by registered post to the Public Procurement Arbitration Board not later than fifteen days after receipt of the decision.
2. In the course of the legal procedure other civil right claims shall not be open for enforcement, the statement of the invalidity of the contract due to reasons other than those listed in paragraph 137(1) shall not be requested.
3. In the course of the legal procedure, Chapter XX of the CP shall apply with the derogations specified in this Act.
4. The Public Procurement Arbitration Board shall forward the application together with the documents of the case and the provision of information according to Article 170(3) as well as its statement on the contents of the application to the court within five days after receiving the application.
6. The application may be changed or extended only within the period open for the initiation of the legal proceeding. Article 335/A (2) of the CP shall apply in this case as well.
7. Where a hearing is held upon the request of any of the parties, any further comment or statement made after the hearing of the given case, without the request of the Public Procurement Arbitration Board shall not be taken into consideration by the Public Procurement Arbitration Board for its decision.
1. The court may change the decision of the Public Procurement Arbitration Board – including the sum of the fine – and it may apply the legal consequences set out in Article 165(3), (6), (8) and (9). If the court annuls the decision of the Public Procurement Arbitration Board it shall close the legal procedure on the subject of the invalidity of the contract. The decision of the Public Procurement Arbitration Board may not be annulled by the court unless an infringement of the substantial rules on legal remedy proceedings having an effect on the substance of the case occurred in the proceeding of the Public Procurement Arbitration Board.
2. If the court declares the contract concluded pursuant to a procurement procedure to be valid under Article 137(3), it shall impose a fine, the sum of which shall be – taking into consideration all the circumstances relevant to the case – not more than fifteen percent of the value of the contract. If, in the course of enforcing the legal consequences of ineffectiveness, the court orders payment for monetary value of the services yet uncompensated, it shall impose a fine the sum of which shall equal – taking into consideration all the circumstances relevant to the case – not more than ten per cent of the contract value.
3. No appeal may lie from the court's decision, except for the decisions concerning the invalidity of the contract and for the cases where the decision of the Public Procurement Arbitration Board is reversed by the court.
Civil action for stating the invalidity of a contract modification
1. If, on the basis of the outcome of the official control according to Article 187(2)(j), the Public Procurement Arbitration Board establishes that the contents of the contract are likely to violate Article 142(3), it shall bring an action with a view to declaring the modification of the contract invalid and applying the legal consequences of invalidity. The Public Procurement Authority is entitled to exemption from all court costs.
2. The Public Procurement Authority shall initiate the action set out in paragraph 1 within thirty days counted from the completion of the control. In the case of failing to meet the deadline, a certification may be presented in accordance with the provisions set out in the CP.
3. The Public Procurement Authority shall publish a notification about initiating the action set out in paragraph 1 on its homepage. The notification shall contain the naming of the case in question (if appropriate, the indication of the related procurement procedure), the date of submission of the claim and the naming of the parties to the proceedings.
4. If the court states the invalidity of the contract modification on the grounds specified in Article 142(3) in the legal action pursuant to paragraph (1), it shall enforce the legal consequences of ineffectiveness in compliance with the provisions laid down in the Civil Code, furthermore, it shall impose a fine the amount of which shall be – taking into consideration all the circumstances relevant to the case – not more than fifteen percent of the value of the contract.
Civil action for stating the invalidity of contracts infringing regulations applicable to procurement procedures
1. If the Public Procurement Arbitration Board states in its substantial decision that an infringement set out in Article 137(1) has occurred, it shall bring an action with a view to annulling the contract and applying the legal consequences of invalidity. Simultaneously with the initiation of the legal proceeding, the Public Procurement Arbitration Board shall request the court – as an interim measure – to suspend the further execution of the contract. The Public Procurement Arbitration Board is entitled to exemption from all court costs.
2. The Public Procurement Arbitration Board shall initiate the action set out in paragraph 1 within thirty days counted from the date of making its substantial decision. In the case of failing to meet the deadline, a certification may be presented in accordance with the provisions set out in the CP.
3. The Public Procurement Arbitration Board shall publish a notification about initiating the action set out in paragraph 1 on the homepage of the Public Procurement Authority. The notification shall contain the naming of the case in question (the indication of the related procurement procedure), the indication of the decision on the substance of the case, the date of the submission of the claim and the naming of the parties to the proceedings.
4. If the court states the invalidity of the contract due to reasons specified in Article 137(1) in the legal action pursuant to paragraph (1), it shall enforce the legal consequences of ineffectiveness in compliance with the provisions laid down in the Civil Code and those laid down in this Act.
6. The legal action specified in paragraph 1 falls within the exclusive competence of the administrative and labour court trying the case in the administrative proceeding pursuant to Article 170 initiated in relation to the same infringement of the public procurement law. If a request for judicial review was lodged against the substantial decision of the Public Procurement Arbitration Board stating an infringement specified in Article 137(1) and the administrative proceeding was initiated later than the civil action, the case shall be referred to the court trying the case in the administrative proceeding pursuant to Article 170. The administrative proceeding and the civil action initiated by the Public Procurement Arbitration Board shall be consolidated. The Public Procurement Arbitration Board shall inform without delay the court trying the case in the civil action if an application for the judicial review of its substantial decision stating an infringement specified in Article 137(1) was submitted to it.
7. As regards the consolidated proceedings specified in paragraph 6, Chapter XX of the CP shall apply with the derogations defined in Articles 173(2), (5)-(7) and 174.
Other civil actions related to public procurements
1. With the exception of cases covered by Article 173(1), Article 175(1) and 176(1) as well as paragraph 3 herein any claim in civil law grounded on an infringement of legislation applicable to public procurement or to the procurement procedure shall be admissible on condition that the infringement has been stated in a legally enforceable decision by the Public Procurement Arbitration Board, or in the course of the review of the decision of the Public Procurement Arbitration Board, by the court.
2. If tenderers only claim the reimbursement of their costs (damages) incurred in the preparation of a tender and in relation to their participation in a procurement procedure from the contracting authority, it is sufficient to prove for the enforcement of such a claim that
the contracting entity has violated a legislative provision applicable to public procurement or the procurement procedure,
they have had a real chance of winning the contract and
the infringement has adversely affected their chance of winning the contract.
3. The provisions laid down in paragraph 1 shall not apply, if the enforcement of a claim in civil law – or a reference made to the invalidity of the contract - is grounded on the infringement of the provisions stipulated in Articles 133-135, 138-140 and Article 142(3) or any other provision set out in this Act or in the related decrees concerning the content elements of the contract. In case of subsidies granted by the European Union, the legally enforceable decision of the Public Procurement Arbitration Board on the infringement of the public procurement law, or in case of review of the decision thereof, a final and binding court ruling thereon shall not be condition for the enforcement of a pecuniary claim arising - on the basis of the funding relationship - out of the infringement of the public procurement law, except ife the entity granting subsidy for the public procurement or the entity exercising the control of public procurements stipulated by law has already carried out the control of the procurement procedure and has established the lawfullness of the procedure. (This amendment entered into force on 1 January 2017.)
4. Apart from the lawsuit under Article 173(1), an action for establishing the invalidity of contracts due to infringement of regulations applicable to public procurement or for the application of the legal consequences of invalidity may be brought by tenderers participating in the procurement procedure concerned, only if the tenderer proves that he has a direct legal interest in relation to the invalidity of the contract. The mere fact that the tenderer has submitted a valid tender in the procurement procedure shall not itself serve as the basis for the direct legal interest. In the absence of an obligation to conclude the contract under the PPA, the court shall not impose, merely based on the decision closing the procurement procedure, an obligation on the contracting authority to conclude the contract. (This paragraph entered into force on 1 January 2017.)
Public Procurement Act (being in force 1 April 2017)
Annex 1 to Act CXLIII of 2015 on Public ProcurementList of works specified in Article 8(3)(a)
Annex 2 to Act CXLIII of 2015 on Public ProcurementList of supplies in the field of defence
Annex 3 to Act CXLIII of 2015 on Public ProcurementSocial and other specific services
Annex 4 to Act CXLIII of 2015 on Public ProcurementList of international social, labour and environmental conventions referred to in article 73(4)
Previous Public Procurement Act