Bulgaria

October 2018 1 An amendment bill is currently pending at the Bulgarian parliament containing several significant changes, which are not reflected in this guide. References to the amendment bill are made further below for the relevant section.  

1. Where can one find public procurement notifications for Bulgaria?

On the website of the Bulgarian Public Procurement Agency, which keeps the Public Procurement Register in Bulgaria.

Contracts exceeding certain values should be also published in the Official Journal of the European Union. Notices can be found on TED (Tenders Electronic Daily). Public competition (which is a simplified open procedure) and direct negotiations (which is a simplified procedure without a prior call for competition) procedures, as well as applicable procedures with a lower contract value, need not be announced on TED (see below table).

In Bulgaria, all contracting authorities and contracting entities are obliged to have a separate section on their Internet site containing information on all the public procurement procedures they have launched. It is called a buyer’s profile and should be easily recognizable on their sites. Hence, public procurement updates can also be found on the Internet site of each particular purchaser.

2. What are the relevant thresholds for the applicability of Bulgarian Public Procurement Act (PPA)? 2 The amendment bill envisages changes to the thresholds.

Procedure

Social and Special Services BGN without VAT

Other services and supplies BGN without VAT

Works in BGN without VAT

PPA is applied by classic (public) purchasers

≥ 500,000

≥ 264,033

≥ 5,000,000

PPA is applied by sectorial purchasers

≥ 1,000,000

≥ 817,524

≥5,000,000

Public competition or direct negotiations procedures (no TED publications)

n/a

From 70,000 up to the relevant threshold above

270,000 – 5,000,000

Prior notice or invitation (no TED publication)

n/a

30,000 – 70,000

50,000 – 270,000

No PPA procedure

< 70,000

< 30,000

< 50,000

Note: 1 BGN (Bulgarian lev) = approx. EUR 0.5111

3. Under what circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?

The PPA differentiates between classic (public) and sectorial purchasers:

  • Contracting authorities, among which are the President, the Prime Minister, Ministers, mayors and other public authorities;
  • Contracting entities are the sectorial purchasers operating in the water, energy, transport or postal services.

Contracting authorities (i.e. public authorities) may freely choose to apply open and restricted procedures.

Contracting authorities may apply the competitive procedure with negotiation or the competitive dialogue for:

  • Contracts for which any of the following conditions are present:
    • a. The needs of the contracting authority cannot be met without adapting readily available solutions;
    • b. The contract includes innovation or design;
    • c. The contract may not be awarded without negotiations because of specific circumstances related to the nature, the complexity or the legal and financial make-up of the contract or because of the risks attaching to it;
    • d. The technical specifications cannot be established with sufficient precision by the contracting authority with reference to a standard, European Technical Assessment, common technical specification or technical references;
    • e. The public procurement is for social or other special services (as listed in Annex 2 to the PPA).
  • When all tenders submitted in response to an open or restricted procedure were irregular or unacceptable.

A negotiated procedure without prior publication may be used by contracting authorities:

  • when no suitable tenders have been submitted in an open or restricted procedure, provided that the initial conditions of the contract are not substantially altered;
  • when all tenders in a previous open or restricted procedure have exceeded the contracting entity’s financial resources; in this case all compliant participants from the previous procedure must be invited to negotiations;
  • when the contract can be delivered only by a particular economic operator for any of the following reasons:
    • a. the aim of the procurement is to create or acquire a unique work of art or artistic performance;
    • b. competition is absent for technical reasons;
    • c. protection of exclusive rights, including intellectual property rights.
  • when it is strictly necessary due to urgency brought about by extraordinary circumstances (unforeseeable events) for the contracting authority, the time limits, including the shortened ones, laid down for open procedures, restricted procedures and negotiated procedures with prior call for competition cannot be complied with;
  • in the case of supply contracts (already signed following a public procurement procedure) for additional deliveries by the original supplier intended either as a partial replacement of supplies or installations or as the extension of existing supplies or installations, where a change of supplier would oblige the contracting entity to acquire supplies with different technical characteristics that would result in incompatibility or disproportionate technical difficulties in operation and maintenance;
  • for supplies quoted and purchased on a commodity market;
  • for bargain supplies or services supplied by an economic operator terminating its economic activity;
  • when the service is awarded pursuant to a design contest, in which case the winning contestant(s) shall be invited to negotiations;
  • when the repetition of construction or services awarded by the same contracting entity to the primary contractor are required, subject to fulfilment of certain additional conditions; and
  • when the goods to be supplied are produced for the purposes of research, experimental, scientific or development activities in quantities that do not allow effective market placement or recovery of the research and development costs.

Contracting entities may freely choose between the open, restricted, negotiated procedure with prior call for competition and the competitive dialogue procedures.

Contracting entities may apply the negotiated procedure without prior call for competition in the above mentioned situations, applicable for public authorities, except the last one, and also:

  • where a contract is purely for the purpose of research, experiment, study or development, and the awarded contracts do not cover production in quantities that secure enough market realization or allow the research and development costs to be recovered;
  • bargain purchases, where it is possible to procure supplies by taking advantage of a particularly advantageous opportunity available for a very short time at a price considerably lower than normal market prices.

With the new Public Procurement Act, some pure e-procedures have been introduced to the Bulgarian legislation – dynamic purchasing systems, electronic auctions and electronic catalogues.

4. Which decisions of a contracting authority can be appealed?

Generally, any decision of the contracting authorities can be subject to appeal when made during a procedure for:

  1. a public procurement award, including during the conclusion of a framework agreement, a dynamic purchasing system or qualification systems;
  2. the conclusion of a framework agreement;
  3. setting up a dynamic purchasing system or establishing qualification systems;
  4. a design contest.

In particular this includes:

  • The decision to open a public procurement. In this case, the interested parties may appeal the terms and conditions of the tender stipulated in the instructions to tenderers,
  • The decisions for disqualification of tenderers in the restricted and negotiated procedures and the competitive dialogue,
  • The contract award decision,
  • The decision for termination of a procedure, and
  • The decision of a contractor for appointing a subcontractor.

Additionally, any action or inaction of the contracting authority/entity that prevents the tenderer from participating in the procedure may also be appealed.

5. What are the time limits for appeals? Are further appeals precluded after the expiry of these limits?

The above decisions may be appealed within ten days of the publication/receipt of the relevant decision or ten days from the notification of the relevant action. If the person is not notified or in there is an omission, the decision must be appealed within 10 days of the date on which the time limit for the performance of the relevant action expires.

Regarding the decision for opening a public procurement procedure, the contracting entity may amend/supplement the ITT within 14 days of its publications. The decision may then be appealed within ten days following the expiry of that term.

After the expiry of the above terms the right of appeal is precluded.

6. How long is the standstill period?

The standstill period starts with the receipt of the award decision by the tenderers and expires 14 days thereafter. No standstill period shall apply if only one tenderer participated in the procedure.

7. Which review bodies exist?

Appeals shall be filed to the Competition Protection Commission. Its decisions are subject to review by the Supreme Administrative Court in the final instance.

8. Are there any filing fees for an appeal?

The state fees for filing an appeal before the Competition Protection Commission are approximately:

  • EUR 430 for contracts of estimated value of up to EUR 500,000;
  • EUR 870 for contracts of estimated value of up to EUR 2,500,000 and
  • EUR 2,230 for contracts of estimated value of more than BGN 2,500,000.

Currently, appealing against the Competition Protection Commission’s decision before the Supreme Administrative Court is subject to a state fee equal to the half of the above fees.

However, as of 1 January 2019 the state fees for an appeal against the Competition Protection Commission’s decision before the Supreme Administrative Court will change and equal the fees for filing an appeal before the Competition Protection Commission.

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?

An appeal against the contract award decision does have a suspensive effect. The contracting authority/entity may request preliminary enforcement of the award decision. The Competition Protection Commission's ruling on the matter can be appealed, which suspends the preliminary enforcement of the award decision.

Appeals against any of the other decisions taken in the course of the procedures do not have a suspensive effect unless interim measures are requested in the appeal. In such cases the public procurement award procedure is suspended from the time the contracting entity is notified of such a procedure by the Commission on Protection of Competition until the entry into force of:

  1. a ruling that the request for an interim measure is overruled, or
  2. the decision on the appeal, if the interim measure has been imposed.

A request for interim measures may not be made when appealing any decision, action or omission of the contracting entity related to certain urgent awarding procedures and specific procedures of sectoral contracting authorities.

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC

The rules of Directive 66/2007/ EC are implemented in the new Public Procurement Act. According to the act, interested parties may request a civil court to rescind a public procurement contract if:

  • the contract has been signed without conducting a mandatory public procurement procedure;
  • the contracting authority/entity has applied any of the simplified terms and conditions or procedures in breach of the mandatory rules in respect thereof (e.g. illegal implementation of a negotiated procedure without a prior call for competition); or
  • if the contract is signed within a standstill period which has deprived the interested party of the opportunity to participate in the procedure.

Claims for rescission of a signed public procurement contract shall be filed with the competent civil courts. The claim is subject to a court fee of 4% of the material interest of the claimant (i.e. the contract value). The claim must be filed within two months after the claimant becomes aware of the signed contract or after publication of a notice of the signed contract, but not later than one year following signing.

If the contract is rescinded, each party must return to the other party whatever it has received or the monetary equivalent of what it has received under the contract.

Administrative sanctions may be imposed on the contracting authorities/entities for breaches of public procurement regulations.

11. To which extent can procurement contracts be amended after awarding?

  • Public procurement contracts and framework agreements may only be modified under the following conditions:
    • the modifications have been provided for in advance in the procurement documents and in the contract in clear, precise and unequivocal clauses, including price revision clauses or options and the scope and nature of possible modifications or options, provided that they do not provide for modifications that would alter the subject matter of the procurement;
    • additional supplies, services or works have become necessary due to unforeseen circumstances, and were not included in the initial procurement;
    • the need for modification has arisen from circumstances that a diligent contracting authority could not foresee and the modification does not alter the subject-matter of the contract or the framework agreement;
    • a new contractor replaces the contractor —several conditions must be fulfilled in this case (inability to perform, universal succession, and others):
    • substantial modifications are not required;
    • the modification is necessary due to unforeseen circumstances and does not alter the overall nature of the procurement or the framework agreement and the value of the modification is below (i) the EU thresholds and (ii) 10% of the initial contract value for services and supplies contracts and 15% for works contracts;
  • If the price needs to be increased due to any of the above amendments, the increase may not exceed 50% of the value of the original contract or the framework agreement. Where successive modifications are made, the limit applies to the aggregate value of the modifications. Such consecutive modifications must not be aimed at circumventing this Act.
  • In some cases, where the public procurement contract includes an indexation clause or is concluded at determinable prices, the updated price at the moment of the modification will be taken as a reference value.

12. Is it mandatory or voluntary to use e-procurement or e-signatures?

  • Currently, only the ESPD must be delivered in electronic form with e-signatures. The remaining documents must be filed on paper originals or certified true copies.
  • As of 18 October 2018, the contracting authorities will only use a unified national web-based platform for public procurement procedures. The platform is still under preparation and it remains uncertain whether it will be ready in time.
  • At the time of going to press, an amendment bill containing details related to the use of the web-based platform for public procurement procedures is still under discussions in the Bulgarian parliament and the initial draft i

Authors

Picture of Antonia Kehayova
Antonia Kehayova
Attorney-at-Law