Public procurement procedures are to be amended from 1 April, with further changes being introduced on 1 October 2009 and 1 January and 1 July 2010.
The changes are intended to simplify the procedures, reflect recent experiences of their everyday use and also update them to reflect a recent EU directive.
The key changes taking effect from 1 April 2009 are:
- there will be a new, two-tier community and national regime to replace the current three-tier one, categorising procedures by reference to their value
- allowing official certificates and declarations (usually required from all bidders to verify their credentials and ensure there are no grounds for exclusion) to be sought only from the winning bidder and its subcontractors once the winner has been announced. Where this is done, the winning parties will not be able to submit additional documents, so any omissions or irregularities may lead to their exclusion (despite of their theoretical win)
- if a two-phase ‘negotiated’ tender results in only one bidder being qualified (out of several original bidders), the tender will be deemed ineffective with no winner, unless the contracting authority decides to start the tender process again using the same qualification criteria
- there will be a clear distinction between subcontractors and ‘resource providers’: subcontractors will be given a wider definition covering every party who will be directly involved in performing the tender contract (and will thus include all relationships based on framework agreements as well); while resource providers may not be relied on by bidders (e.g.: for their references or turnover) unless one has a majority influence over the other
- bidders must perform at least 50% of the contract themselves, without the involvement of subcontractors
- contracting authorities wishing contracts to be performed by a special project company may only specify certain details (such as the type of company and minimum registered capital). Liability will be joint and several between the project company and the winning consortium members who must be the sole shareholders in the project company
Other changes designed to comply with a 2007 EU directive improving the review procedures will mainly take effect from 1 January 2010. These include:
- automatically suspending signature of a tender contract for the duration of a review procedure (i.e. until the Public Procurement Arbitration Committee has reached its final decision or the procedure is otherwise ended)
- introducing a new procedure by which the Public Procurement Arbitration Committee can, in certain situations (including infringement of the standstill period), seek a declaration in the civil courts that the tender contract is ineffective
Law: Act CVIII of 2008 amending the Act on Public Procurement (Act CXXIX of 2003); Directive 2007/66/EC modifying Directives 89/665/EEC and 92/13/EEC
