Act CXLIII of 2015 on Public Procurement (the Act on Public Procurement).

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REPORTING IRREGULARITIES RELATED TO PUBLIC PROCUREMENT PROCEDURES

Legal disputes concerning public procurement procedures are resolved by the Public Procurement Arbitration Board, its proceedings are regulated in Act CXLIII of 2015 on Public Procurement (the Act on Public Procurement).

Kulcsszavak: Public procurement, Public Procurement Arbitration Board, Review procedure, Decision, Application, Application for review, Contracting authority, Tenderer

Pursuant to the Act on Public Procurement, the Public Procurement Arbitration Board is an independent body with national jurisdiction that functions under the Public Procurement Authority. Public procurement commissioners make their decisions independently, based on their own interpretation of law, and without any external influence. They may not take instructions in relation to their decisions, as stipulated by law. Arbitration Board proceedings are governed by the provisions of Act CL of 2016 on the Code of General Administrative Procedures, taking into account any supplementary provisions set out by the Act on Public Procurement or by any of its implementing decrees

As a general rule, communication in review proceedings before the Public Procurement Arbitration Board is done via electronic communication.

The Public Procurement Arbitration Board may call on the applicant or the body which initiated proceedings multiple times to provide corrections or missing information as necessary, statements by clients do not replace the submission of missing procurement documents.

The Public Procurement Arbitration Board has national jurisdiction.

Representation by an accredited public procurement consultant, a member of the bar association or an attorney is mandatory in review proceedings before the Public Procurement Arbitration Board.

The Arbitration Board shall act ex officio – when the proceeding is  initiated by a body or person designated by law – or upon application submitted by a person entitled to do so.

Public Procurement Arbitration Board

The Arbitration Board’s jurisdiction includes conducting proceedings initiated as a result of any infringement of legislative provisions applicable to public procurement, procurement procedures, public works or service concessions and concession award procedures, including proceedings initiated because of the rejection of requests for prequalification and removal from the prequalification list provided for in a separate piece of legislation.

The Arbitration Board also decides  legal disputes concerning the amendment or fulfilment of contracts which were concluded on the basis of a procurement procedure or award procedure where such amendment or fulfilment violates the provisions of the Act on Public Procurement, as well as disputes concerning infringements by any entity applying the Act on Public Procurement.

Furthermore, the Arbitration Board conducts proceedings against any misconduct or failure violating the procedural rules laid down independently by the contracting authority in accordance with Article 117 of the Act on Public Procurement.

Who may submit an application?

The Public Procurement Arbitration Board acts on application or ex officio. Applications may be submitted by a contracting authority, a tenderer, in the case of a joint tender any of the tenderers, entities wishing to participate, in the case of a joint bid to participate any of the participating entities, or any other interested party whose right or legitimate interest is being harmed or jeopardised by an activity or default which runs contrary to the Act on Public Procurement. Chambers or representative associations pursuing an activity related to the subject of procurement may also submit an application regarding the unlawful nature of a tender notice, a call for tenders, an invitation to participate, procurement documents or any amendment thereto, or the unlawful nature of the information specified in Section 113(1) of the Act on Public Procurement.

Generally, applications may be submitted within fifteen days from the day on which the applicant learned of the infringement; in cases of infringing decisions closing a procurement procedure, the time limit is within ten days from the day on which the applicant learned of the infringement. No application may be submitted after ninety days following the occurrence of the infringement. As a general rule, applications relating to a tender notice, a call for tenders or invitation to participate, procurement documents or their amendments may be submitted no later than five days before expiry of the (modified) time limit set for the submission of the tenders or requests to participate. The rules on learning of infringements and the time limits other than those the general rule are set out under subtitle Review proceedings of the Act on Public Procurement.

Applications for review proceedings and the document requesting an ex officio proceedings must be submitted in writing to the Public Procurement Arbitration Board.

The application must include the name and business/home address of the applicant and legal representative (accredited public procurement consultant, a member of the bar association, or an attorney), and proof of the applicant’s eligibility; the name and address of the contracting authority in the procurement procedure concerned, the subject-matter of the procurement and, where the tender is divided into lots, the lot concerned in the review proceedings, or for procurement without a procedure, the name, address of the contracting authority and the subject-matter of the procurement; the date on which the infringement occurred and the date on which the applicant learned thereof in such a way that allows clear identification of each element of the application; the legislative provision infringed in such a way that allows clear identification of each element of the application, as well as proof of the infringement; 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 of each element of the application; the motion for ordering an interim measure and the reasons therefor; the name and address known to the applicant of any stakeholders of the public procurement case; any possible preliminary dispute settlement, its results and the answer of the contracting authority, which should be attached to the application.

The number of copies of the application to be submitted must correspond to the number of parties involved in the proceedings as known to the applicant. Moreover, an extra copy should also be submitted for administrative purposes.

Review proceedings of the Public Procurement Arbitration Board initiated upon application are subject to an administrative service fee. The applicable rates for the administrative service fee are defined by Decree No 45/2015 of 2 November 2015 of the Minister for the Interior on administrative service fees payable for proceedings conducted by the Public Procurement Arbitration Board. The amount of the fee depends on the value of the procurement procedure and the number of elements in the application, hence it varies.

Review proceedings are conducted by the Public Procurement Arbitration Board.

 

If pursuant to Act CL of 2016 on the Code of General Administrative Procedures the decision of the Public Procurement Arbitration Board can be appealed, the application for review must be submitted to the Public Procurement Arbitration Board within eight days from the communication of the decision. The decision concluding these administrative proceedings is binding and can’t be appealed.

Entities or persons entitled to initiate such proceedings can apply to an administrative court to review the final decision (substantial decision) of the Public Procurement Arbitration Board. In addition to an infringement by the Public Procurement Arbitration Board, a review may be requested if according to the applicant the Public Procurement Arbitration Board has not properly evaluated the earlier procedure or decision with regard to the provisions of the Act on Public Procurement. An application for review must be submitted to the Public Procurement Arbitration Board within fifteen days of receipt of the decision. The court will then send the applicant a statement of defence within eight days at the latest. The court decision cannot be appealed unless the court changes the decision of the Public Procurement Arbitration Board. The court will send the parties its decision in writing within fifteen days of its delivery.

 

The language of the proceedings of the Public Procurement Arbitration Board is Hungarian.

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Act CXLIII of 2015 on Public Procurement

Act CL of 2016 on the Code of General Administrative Procedures

Decree No 45/2015 of 2 November 2015 of the Minister of the Interior on administrative service fees for procedures of the Public Procurement Arbitration Board

ME KFF HÁT