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CMS Public Procurement Guide

Editors: Bernt Elsner
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Foreword
Public procurement (the purchase by governments and state-owned enterprises of goods, services and works) accounts on average for approximately 12% of GDP of all OECD member countries (excluding procurement by state-owned utilities). When the purchases value of the procurement contracts of state-owned utilities is also accounted for, the size of procurement markets increases by an additional 2 to 13 percentage points of GDP.

Therefore, the legal framework of public procurement is key to improving the quality of government services, better allocating resources and providing greater value for taxpayers’ money. The legal framework has been harmonized by the EU Public Procurement Directives. However, member states have used their playing field when implementing these directives to fix certain national peculiarities, which lead to relevant differences in national public procurement laws.

Three new public procurement directives have been published on March 28th, 2014: (i) Directive 2014/24/EU on public procurement, (ii) Directive 2014/25/EU on procurement by entities operating in the water, energy, transport and postal services sectors and (iii) Directive 2014/23/EU on the award of concession contracts. These new directives entered into force on April 17th, 2014 and must be implemented into national law until April 17th, 2016. Several member states, however, have implemented parts of the new regime already.

This guide intends to provide an overview on the EU Public Procurement Directives and 22 national procurement laws following ten questions, answered by CMS public procurement specialists experienced in the respective jurisdictions, including Albania, Austria, Belgium, Bosnia and Herzegovina, Bulgaria, China, Czech Republic, France, Germany, Hungary, The Netherlands, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Switzerland, Ukraine and the United Kingdom.

Your CMS experts are happy to answer any further questions you may have.

Bernt Elsner, editor
EU Directives
By Bernt Elsner and Florian Kromer, CMS Vienna
Amended as of April 2016
In December 2011, the European Commission adopted its proposals on public procurement which is part of an overall programme aiming at an in-depth modernization of public procurement in the European Union. The programme included the revision of Directive 2004/17/EC (procurement in the water, energy, transport and postal services sectors, Directive 2014/25/EU) and 2004/18/EC (public works, supply and service contracts, Directive 2014/24/EU), as well as the adoption of a new directive on concessions (Directive 2014/23/EU), which before had only been partially regulated at European level. The directives entered into force on April 17th, 20 days following its publication in the Official Journal of the European Union on March 28th, 2014, and have since been amended slightly. Member states had 24 months to implement the provisions of the new rules into national law; the implementation period expired on April 18th, 2016.
1. Where can one find public procurement notifications for the EU/EEA?
  • TED (Tenders Electronic Daily), the online version of the ‘Supplement to the Official Journal of the European Union’; TED contains public procurement notices and can be accessed via www.ted.europa.eu.
  • SIMAP, the European system of information on public procurement (www.simap.europa.eu/index_en.htm) provides information both for buyers and suppliers, including standard forms and links to the relevant legislation.
  • The EU institutions also publish tender notices.
  • eNotices is an online tool for the preparation and publication of public procurement notices.

2. What are the relevant thresholds for the applicability of the Directives?
Awarded bySupply contractsService contractsWorks contractsService contracts for social and other specific services
Sub-central contracting209,000209,000
Central government authorities135,000135,000
Central government authorities operating in the field of defence concerning products other than Annex III209,000
Central government authorities operating in the field of defence concerning products pursuant to Annex III135,000
Any public contractor209,000209,0005,225,000750,000 (Annex XIV)
Utility Services Sector (Water, energy, transport and postal services)418,000418,0005,225,0001,000,000 (Annex XVII)

Awarded byConcession contracts:
Any public contractor5,225,000

3. Under what circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
  • Contracting authorities may apply open or restricted procedures (Art 26 (2) Dir 2014/24).
  • Contracting authorities may apply a competitive procedure with negotiation or a competitive dialogue in the following situations:
    • with regard to works, supplies or services fulfilling one or more of the following criteria (Art 26 (4) Dir 2014/24):
      • the needs of the contracting authority cannot be met without adaptation of readily available solutions;
      • they include design or innovative solutions;
      • the contract cannot be awarded without prior negotiations because of specific circumstances related to the nature, the complexity or the legal and financial make-up or because of the risks attaching to them;
      • 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 reference within the meaning of points 2 to 5 of Annex VII;
    • with regard to works, supplies or services where, in response to an open or a restricted procedure, only irregular or unacceptable tenders are submitted. In such situations contracting authorities shall not be required to publish a contract notice where they include in the procedure all of, and only, the tenderers which satisfy the criteria for qualitative selection and which, during the prior open or restricted procedure, submitted tenders in accordance with the formal requirements of the procurement procedure (Art 26 (4) (b) Dir 2014/24).
  • In the utility services sector the use of the negotiated procedure with prior call for competition is always possible (Art 44 (2) Dir 2014/25).
  • In the specific cases and circumstances mentioned below, Member States may provide that contracting authorities may award public contracts by a negotiated procedure without prior publication.
    The negotiated procedure without prior publication may be used for public works contracts, public supply contracts and public service contracts in any of the following cases (Art 32 (2) Dir 2014/24):
    • where no (suitable) tenders or no (suitable) requests to participate have been submitted in response to an open procedure or a restricted procedure, provided that the initial conditions of the contract are not substantially altered and that a report is sent to the Commission, where it so requests
    • where the works, supplies or services can be supplied only by a particular economic operator for any of the following reasons, when no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement:
      • the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance;
      • competition is absent for technical reasons;
      • the protection of exclusive rights, including intellectual property rights;
    • if it is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the contracting authority, the time limits for the open or restricted procedures or competitive procedures with negotiation cannot be complied with. The circumstances invoked to justify extreme urgency shall not, in any event, be attributable to the contracting authority.

  • The negotiated procedure without prior publication may be used for public supply contracts (Art 32 (3) Dir 2014/24):
    • where the products involved are manufactured purely for the purpose of research, experimentation, study or development; however, contracts awarded pursuant to this point shall not include quantity production to establish commercial viability or to recover research and development costs;
    • for additional deliveries by the original supplier which are 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 authority to acquire supplies having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; the duration of such contracts as well as that of recurrent contracts shall not, as a general rule, exceed three years;
    • for supplies quoted and purchased on a commodity market;
    • for the purchase of supplies or services on particularly advantageous terms, from either a supplier which is definitively winding up its business activities, or the liquidator in an insolvency procedure, an arrangement with creditors, or a similar procedure under national laws or regulations.

  • The negotiated procedure without prior publication may be used for public service contracts, where the contract concerned follows a design contest and is to be awarded, under the rules provided for in the design contest, to the winner or one of the winners of the design contest; in the latter case, all winners must be invited to participate in the negotiations.
    • In the sector area there are certain modifications and additions to this (Art 50 Dir 2014/25).
    • Contracting authorities may apply “innovation partnerships” as a new procurement process for the procurement of innovative products, services or products that cannot be met by conventional solutions on the market (Art 26 (3) and Art 31 (1) Dir 2014/24; Art 44 (3) and Art 49 (1) Dir 2014/25).
    • Dir 2014/23 on the award of concession contracts applies to the award of works or service concessions (as defined in Art 5 (1) Dir 2014/23) to economic operators (Art 1 (2) Dir 2014/23)

4. Which decisions of a contracting authority can be appealed?
  • An appeal is possible against unlawful contract award decisions, discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents or any other document related to the contract award procedure (Art 2 (1) (b) Dir 89/665/EEC and Art 2 (1) (b) Dir 92/13/EEC).

5. What are the time limits for appeals? Are further appeals precluded after the expiry of these limits?
  • The period for applying for review must amount to a minimum of ten days with effect from the day following the date on which the contracting authority’s decision is sent to the tenderer or candidate by fax or electronic means.
  • The period for applying for review shall amount to a minimum of 15 calendar days if other means of communication have been used.
  • For reviews concerning the setting aside of decisions, the contracting authority’s decision is to be accompanied by a summary of the relevant reasons, the period shall amount to a minimum of ten days following the date of the publication of the decision concerned (Art 2c Dir 89/665/EEC and Art 2c Dir 92/13/EEC).

6. How long is the standstill period?
  • There is a standstill period of at least ten calendar days with effect from the day following the date on which the contract award decision is sent to the tenderers and candidates concerned (if fax or electronic means have been used).
  • It lasts for at least 15 calendar days if other means of communications have been used.
  • It shall amount to a minimum of ten calendar days from the day following the date of the receipt of the contract award decision (Art 2a Dir 89/665/EEC and Art 2a of Dir 92/13/EEC).

7. Which review bodies exist?
  • Review bodies have to be established by the Member States. The powers may be conferred on separate bodies responsible for different aspects of the review procedure. These bodies must be entitled to grant interim measures, set aside decisions and award damages.
  • Member States may require that the person concerned first seek review with the contracting authority.
  • If the review body is not a court it must still provide written reasons for its decision, with the possibility to appeal to a court according to Art 234 TFEU (Art 2 (9) Dir 89/655/EEC and Art 2 (9) Dir 92/13/EEC).

8. Are there any filing fees for an appeal?
  • Filing fees, if any, are regulated by national laws.

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
  • If Member States require that the bidder concerned first seeks review with the contracting authority, the submission of such an application for review must result in an immediate suspension of the possibility to conclude the contract (Art 1 (5) Dir 89/665/EEC and Art 1 (5) Dir 92/13/EEC). If a body of first instance, independent of the contracting entity, reviews a contract award decision, Member States shall ensure that the contracting entity cannot conclude the contract before the review body has made a decision on the application (Art 2 (3) of Directive 89/665 EEC and Art 2 (3) of Directive 92/13/EEC).
  • Otherwise, review procedures do not necessarily have an automatic suspensive effect (Art 2 (4) Dir 89/665/EEC and Art 2 (3a) Dir 92/13 EEC).
  • Member States must ensure the availability of interim measures to suspend the award of a public contract (Art 2 (1) a Dir 89/665/EEC and Art 2 (1) a Dir 92/13/EEC).

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC
  • Member States provide for ineffectiveness of a contract if (i) the contract has been awarded without prior publication of the contract notice, (ii) if certain infringements have deprived the tenderer applying for review, (iii) in case of derogation form the standstill period, for contracts based on a framework agreement or a dynamic purchasing system (Art 2d (1) Dir 89/655 EEC and Art 2d (1) Dir 92/13/EEC as amended by Directive 66/2007/EC).
  • Member States may provide that the review body independent of the contracting authority shall decide, after having assessed all relevant aspects, whether the contract should be considered ineffective or whether alternative penalties should be imposed.
  • Alternative penalties must be effective, proportionate and dissuasive. They shall be the imposition of fines on the contracting authority or the shortening the duration of the contract (Art 2e (2) Dir 89/655/EEC and Art 2e (2) Dir 92/13/EEC as amended by Dir 66/2007/EC).
  • According to Art 2 (1) (c) Dir 89/665/EEC and Art 2 (1) (d) Dir 91/13/EEC as amended by Dir 66/2007/EC, Member States shall ensure that the measures taken concerning the review procedures, include provisions for powers to award damages to persons harmed by an infringement.

Albania
By Marco Lacaita and Iva Cucllari, CMS Tirana
1. Where can one find public procurement notifications for Albania?
  • All notifications and related tender documents are accessible online through the Official Journal (Buletini i Prokurimit Publik) published each week by the Public Procurement Agency on the official website www.app.gov.al, alternatively notifications can be obtained in hardcopy from the contracting authority.
  • In addition, the Albanian contracting authorities also publish tender notices on their respective websites.

2. What are the relevant thresholds for the applicability of the Albanian Public Procurement Law (Ligji per Prokurimit Publik n. 9643 – hereinafter, the “PPL”)
  • The PPL and Council of Ministers’ Decision no. 1/2007 envisage three thresholds for public procurement purposes, as follows:
    • The high value threshold, which is equal to ALL
      1,2bn (approx EUR 8,571,428) and applies to public works contracts;
    • The low value threshold, which is equal to ALL 200m (approx EUR 1,428,571) and applies to public contracts relating to purchase of goods and services;
    • The smallest value threshold, which is equal to ALL 400,000 (approx EUR 1,856) and only applies to requests for proposals to procure works, service, or goods below the low value threshold set out under point b above.

3. Under which circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
  • Open procedure: The Albanian PPL recommends that contracting authorities follow open tender procedures in procuring works, services, and goods, whose overall value exceeds the low monetary thresholds of ALL 200m, mentioned under 2 (b) above. The Contracting authorities may only apply restricted, negotiated or, competitive tender procedures for good reasons and circumstances set-forth in the PPL.
  • Restricted procedures: Before deciding to apply the restricted tender procedure the contracting authority has to consider: (i) any specific requirements of the contract to be executed; (ii) the terms and costs of the procedure; (iii) possible opportunities and solutions offered by the market; and (iv) the number of potential bidders willing to participate in the tender. Under no circumstances, shall the contracting authority be entitled to use the restricted tender procedure in procuring works, services, and goods which are provided by, and can be easily identified in, the market or which do not require any particular technical specifications.
  • Negotiated procedure: The Albanian PPL provides for two forms of negotiated procedures:
    • With prior publication of the contract notice: The Contracting Authority may use this procedure to procure works, services, and goods whose value exceeds the low monetary threshold of ALL 200m mentioned under point 2 (b) above. However, provided that: (i) in response to two consecutive opened or restricted tender procedures, all submitted proposals were unresponsive; or (ii) the works or services to be procured do not allow prior estimation of the contract price. In this regard, the contracting authority is entitled to negotiate with the bidders in order to tailor any submitted proposals according to the requirements set-forth in the contract notice with the aim of selecting the best offer for the tender.
    • Without publication of the contract notice: The Contracting Authority may apply this procedure to procure works, services, and goods whose value exceeds or is lower than the monetary threshold of ALL 200m mentioned under point 2 (b) above. However, provided that: (i) in response to two consecutive open or restricted tender procedures no responsive tender was submitted; or (ii) the contract has to be awarded to a specific bidder for reasons strictly relating to intellectual properties rights.

4. Which decisions of a contracting authority can be appealed?
  • Pursuant to the PPL, any parties having a legal interest in a tender procedure has the right to appeal against unlawful contract award decisions or, discriminatory technical, economic, and financial specifications in the tender document, as well as any documents and/or actions of the contracting authority in respect to the contract award procedure. In particular, appeals can be filed against:
    • The contract award notice published by the contracting authority;
    • The tender documents published by the contracting authority;
    • Clarifications requested and/or provided for the tender documents of the contracting authority;
    • Disqualifications from the tender procedure;
    • The contract award decision;
    • The decision of the contracting authority not shortlisting the bidder.

5. What are the time limits for appeals? Are further appeals precluded after the expiry of these limits?
  • During the tender procedure the appeal has to be filed within seven calendar days following the date the bidder was duly notified or became aware of the unlawful decision taken by the contracting authority. The PPL suggests a specific form and procedure for filing the appeal with the contracting authority.
  • Should the party fail to file the complaint with the contracting authority within the seven day period, any rights to the appeal with the supervisory agency of procurement i.e. the Public Procurement Agency shall be precluded.

6. How long is the standstill period?
  • The standstill period in a procurement procedure starts with the announcement of the contract award decision and expires after seven days of the appeal time limit.

7. Which review bodies exist?
  • First phase: The contracting authority is the first reviewing body. The complaint has to be addressed to the executive director of the contracting authority. The contracting authority shall be entitled to review to documents and/or actions relating to the claim of non-shortlisting or unlawful disqualification of the bidder.
  • Second phase: After having exhausted the first phase and should the contracting authority decline or reject the complaint, the party has the right to appeal to the Public Procurement Agency.
  • Final phase: Any decisions of the Public Procurement Agency on procurement procedures shall also be subject to review and the decision of the administrative court of Albania.

8. Are there any filing fees for an appeal?
  • Under the PPL there are no applicable fees for filing an appeal against the contracting authority or the Public Procurement Agency. However, complains filed with the administrative court are subject to a fee.

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
  • Yes. An appeal against a decision of the contracting authority automatically suspends the procurement activity and consequently the awarding of the contract until a decision has been reached by the authority. However, complaints before the court i.e. the final phase mentioned under question 7 above, do not have a suspensive effect, nor do they prohibit the contracting authority from awarding the contract.

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC
  • Albania is not yet a member state of the European Union therefore Directive 66/2007/EC regarding a possible ineffectiveness of the awarded contract is not applicable.
  • However, the Public Procurement Agency is entitled to impose penalties on the contracting authorities, as well as on the contractors breaching the requirements set-forth in the PPL. These penalties can vary between ALL 15,000 (approx EUR 107) up to a maximum of ALL 1m (approx. EUR 7,142).

Austria
By Bernt Elsner and Florian Kromer, CMS Vienna
Amended as of April 2016
1. Where can one find public procurement notifications?

2. What are the current thresholds for the applicability of the Directives?
  • public supply contracts and public service contracts: EUR 209,000 – § 12 (1) Z 2 BVergG
    • if the contracting authority is a central purchasing body, or in case of particular supply contracts in the defense sector: EUR 135,000 – § 12 (1) Z 1 BVergG
  • public works contracts and public works concessions: EUR 5,225,000 – § 12 (1) Z 3 BVergG
  • design contests by central purchasing bodies (prize money): EUR 135,000; in case of the other contracting authorities: EUR 209,000 – § 12 (2) BVergG
  • sector area
    • public supply contracts, public service contracts and design contests for obtaining public supply contracts: EUR 418,000 – 180 (1) Z 1 BVergG
    • public works contracts: EUR 5,225,000 – 180 (1) Z 2 BVergG
If the procurement value exceeds these thresholds, it shall qualify as an over-limit procurement; if not, it shall constitute an under-limit procurement. Over-limit procurements have to meet stricter legal requirements.
3. Under which circumstances can the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue be used?
  • the contracting authority is free to choose between the open and the restricted procedure – § 27 BVergG
  • a negotiated procedure can be carried out (§§ 28-30 BVergG):
    • if no tenders or no suitable tenders or no applications have been submitted in response to an open or restricted procedure
    • if the performance does not permit prior overall pricing due to their nature or due to associated risks
    • if the performance can only be provided by a particular contractor for technical or artistic reasons, or because of the protection of exclusive rights
    • if urgent and compelling reasons do not allow the implementation of an open or restricted procedure with prior publication
  • conditions for competitive dialogue (§ 34 BVergG): in case of complex contracts and if the open/restricted procedure is not possible in the contracting authority’s view (usually in case of PPPs)

4. Which decisions of a contracting authority can be appealed?
  • § 2 Z 16 lit a BVergG – only separately appealable decisions
    • open procedure: the call for tender documents, other declarations within the time limit for tenders, the elimination of a tender, the decision of revocation, the contract award decision
    • restricted procedure: the call for tender documents, the non-authorization for participation, the invitation to submit a tender, other declarations within the time limit for tenders, the elimination of a tender, the decision of revocation, the contract award decision
    • negotiated procedure: the call for tender documents, the non-authorization for participation, the invitation to submit a tender, other declarations during the negotiation phase/within the time limits for tenders, the elimination of a tender, the decision of revocation, the contract award decision
    • competitive dialogue: the call for tender documents, the non-authorization for participation, the invitation for participation, the non-consideration of a solution during the dialogue stage, the conclusion of the dialogue stage, the invitation to submit a tender, the elimination of a tender, the decision of revocation, the contract award decision
Decisions that cannot be appealed separately may be appealed only in combination with the following separately appealable decision.
5. What are the time limits for appeals? Are further appeals precluded after the expiry of these limits?
  • review of separate appealable decisions:
    • ten days, 15 days respectively in case of postal mail – § 321 (1) BVergG
    • seven days in case of under-limit procurements – § 321 (2) BVergG
    • seven days in case of direct procurements – § 321 (3) BVergG
  • review of call for tender documents, participation documents and design contest documents:
    • up to seven days before expiration of time, if the time limit exceeds 17 days – § 321 (4)
  • the failure to observe these time limits leads to a preclusion

6. How long is the standstill period?
  • The standstill period starts with the announcement of the contract award decision and expires after ten days, 15 days respectively in case of postal mail – § 132 (1) BVergG
  • It expires after seven days in case of under-limit procurements – § 132 (1) BVergG
  • The same periods apply to the contracting authority in case of a revocation – § 140 BVergG

7. Which appeal bodies exist?
Depending on whether the contracting authority is attributable to the federal government or a state, the following appeal body shall have competence:
  • at federal level: the Federal Administrative Court (Bundesverwaltungsgericht) – § 291 BVergG
  • at provincial level: the Regional Administrative Courts (Landesverwaltungsgerichte)

8. Are there any filing fees for an appeal?
  • overall charges are contingent on the type of procedure used – § 318 (1) BVergG
    • up to EUR 12,312 in case of over-limit public supply and public service procurements
    • up to EUR 36,936 in case of over-limit public works procurements
  • the fee for a combined interim injunction amounts to 50% of the respective overall charges
  • possibility of reimbursement of the fee for the (possibly only partly) winning applicant; the same applies if the applicant is held harmless – § 319 BVergG

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
  • a review application does not have a suspensive effect under Austrian public procurement law
  • A successful application for an interim injunction prevents the conclusion of a contract before a decision has been reached by the Administrative Court – § 328 BVergG

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC:
  • On a federal basis, § 334 (7) BVergG provides the possibility for the imposition of fines by the Federal Administrative Court in case the Court refrains from declaring the contract ineffective: the maximum limit is 20% of the contract value (10% respectively, in case of an under-limit procedure). 
Alternative sanctions vary among the provinces.
  • In case of a “sufficiently qualified” violation of the BVergG a tenderer may be entitled to compensation from the contracting authority.

Belgium
By Virginie Dor, CMS Brussels
1. Where can one find public procurement notifications for Belgium?

2. What are the relevant thresholds for the applicability of Belgian law?
Classic sectors

supply contractsservices contractsworks contracts
Negotiated procedure without publication of a notificationUp to 85,000Up to 85,000Up to 85,000
Free negotiated procedure with notification (direct or restricted)Up to 207,000Up to 207,000Up to 600,000
EU Thresholds federal contracting authorities134,000134,0005,186,000
EU Thresholds207,000207,0005,186,000

Water, energy, transport and postal services sectors

supply contractsservices contracts works contracts
Negotiated procedure without publication of a notificationUp to 170,000Up to 170,000Up to 170,000
Free negotiated procedure with notification (direct or restricted)Up to 414,000Up to 414,000Up to 5,186,000
EU Thresholds414,000414,0005,186,000

3. Under which circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
  • The contracting authority is free to choose between the open or the restricted procedure – (Art. 23, 53 § 1er and 66 § 1er Law of 15 June 2006).
  • A negotiated procedure without publication of a notification can be carried out in the following circumstances (Art. 26, §1 Law of 15 June 2006) (this is a summary of the circumstances, further conditions apply):
    • in the case of a public contract for works, supplies or services when:
      • the contract does not exceed EUR 85,000 in the “classic sector”;
      • the object of the contract has been declared secret or the execution of the contract must be accompanied by special security measures or when the protection of the essential interests of the country requires it;
      • if an extreme urgency due to unforeseeable events does not allow the implementation of an open or restricted procedure with prior publication;
      • if no applications, tenders or no suitable tenders or no regular tenders have been submitted in response to an open or restricted procedure or competitive dialogue;
      • if the performance can only be provided by a particular contractor for technical or artistic reasons, or because of the protection of exclusive rights.
    • In the case of a public works or services contract when:
      • works or services not included in the project initially considered or in the initial contract became necessary due to unforeseen circumstances;
      • new works or services, consisting of a repetition of similar works or services, are assigned to the purchaser of the initial contract by the same contracting authority.
    • In the case of a supply contract when:
      • the products concerned are solely made for research, experimentation, study or development purposes;
      • additional supplies are to be made by the original supplier which are intended either as a partial replacement of normal supplies or installations for general use, or as the extension of existing supplies or installations;
      • additional supplies of the same type and with the same characteristics are assigned to the provider of the initial contract due to unforeseen circumstances;
      • supplies are quoted and purchased on a commodity market;
      • supplies are purchased on particularly advantageous terms from either a supplier definitively winding up its business activities, or curators; attorneys charge of a transfer under authority of law or liquidators of a bankruptcy or a judicial reorganization or a similar procedure.
    • in the case of a public service contract, when the service contract follows a contest of projects and must, under the rules applicable to them, be awarded to the winner or one of the winners of this contest.
  • a negotiated procedure with publication of a notification can be carried out in the following circumstances (Art. 26, §2 Law of 15 June 2006) (this is a summary of the circumstances, further conditions apply):
    • In the case of a public contract for works, supplies or services when:
      • no suitable tenders or no regular tenders have been submitted in response to an open or restricted procedure or competitive dialogue;
      • in exceptional cases, it concerns works, supplies or services whose nature or risks do not permit prior overall pricing;
      • market access is reserved and the estimated amount of the contract is less than the amount fixed for European advertising;
      • the estimated amount of the market is less than the amounts fixed by the King, which, in any event, must be lower than those set for European advertising.
    • In the case of a public works contract, if the work is performed solely for purposes of research, testing or development and not with the aim of ensuring profitability or recovering research costs and development.
    • In the case of a public service contract, insofar as the nature of the service to be provided is such that contract specifications cannot be ascertained with sufficient precision to enable the awarding of the market by open or restricted procedure.
    • In the case of a public contract for services listed in Annex II B of the Law of 15 June 2006.
  • The contracting authority may use the competitive dialogue procedure (Art. 27 Law of 15 June 2006) in the case of a particularly complex contract when:
    • it is not objectively able to define the technical means capable of satisfying their needs or of assessing what the market can offer in terms of technical, financial and legal solutions, and believes that the use of the open or restricted procedure will not allow the awarding of the market (e.g. in case of PPPs).

4. Which decisions of a contracting authority can be appealed?
  • Open procedure: the call for tender documents; the motivated awarding decision; the decision to stop the awarding procedure;
  • Restricted procedure: the call for tender documents; the selection decision, the motivated awarding decision; the decision to stop the awarding procedure;
  • Negotiated procedure: the call for tender documents, including the decision to organise a negotiated procedure; the selection decision; the motivated awarding decision; the decision to stop the awarding procedure;
  • Competitive dialogue: the call for tender documents, including the decision to organise a competitive dialogue; the selection decision; the non-consideration of a solution at the conclusion of the dialogue stage; the motivated awarding decision; the decision to stop the awarding procedure.

5. What are the time limits for appeals? Are further appeals precluded after the expiry of these limits?
  • Annulment of a decision : 60 days – Art. 23, §2 Law of 17 June 2013
  • Suspension: 15 days, ten Days respectively, in case of the publication of a notice for voluntary ex ante transparency – Art. 23, §3 Law of 17 June 2013
  • Claim for damages: five years – Art. 23, §3 Law of 17 June 2013
  • Ineffectiveness demand: – Art. 23, §4 Law of 17 June 2013
    • 30 days from the day following:
      • the publication of the awarding decision, when the public authority has awarded the public procurement without prior publication of a contract notice in the Official Journal of the European Union and the Bulletin des Adjudications and the contract notice contains the justification for that decision ;
      • notification to the candidates and the tenderers regarding the conclusion of the contract with simultaneous communication of the motivated awarding decision
    • six months in case of non-respect of the previous points
  • Alternative penalties: six months – Art. 23, §5 Law of 17 June 2013
  • The failure to observe these time limits shall lead to a preclusion– Art. 23, §6 Law of 17 June 2013

6. How long is the standstill period?
  • The standstill period starts from the day following the notification of the decision and expires after 15 days.
  • The standstill period is applicable:
    • to procurements of a value exceeding the European thresholds for supply and services; (Ar. 11 of the Law of 17 June 2013) and
    • to procurements of a value exceeding half of the European threshold for works ; (Art. 30, alinea 1 of the Law of 17 June 2013);
    • some exceptions apply.
  • The public authority can voluntarily choose to apply the standstill period to public procurements below the European thresholds (Art. 30, alinea 2 of the Law of 17 June 2013).

7. Which review bodies exist?
  • For the requests for annulment of a decision and suspension, depending on whether the contracting authority is a public authority or not (Art. 24 of the Law of 17 June 2013):
    • the Council of State, when the contracting authority is a public authority (conforming with Art. 14 of the coordinated Law on the Council of State);
    • the Civil Courts, when the contracting authority is not a public authority.
  • For the demands related to damages, ineffectiveness and alternative penalties: the Judicial Courts. Remark: for reviews of ineffectiveness and alternative penalties, the matter is dealt with under “summary proceedings”, on the merits of the matter.

8. Are there any filing fees for an appeal?
There are different types of fees depending on the type of procedure:
  • Civil procedure (preliminary proceedings):
    • fees for the writ of summons: Bailiff costs (in most cases up EUR 500 );
    • proceedings indemnity (fees covering the lawyers’ expenses to be borne by the succumbing party and paid to the winning party): in most cases, the judge will pronounce the “basic amount” of EUR 1,320 but in theory, this can be up to EUR 11,000 (“maximum amount”);
  • Civil procedure on the merits (damages):
    • fees for the writ of summons: costs for the Bailiff (in most cases up to EUR 500);
    • proceedings indemnity (fees covering the lawyers’ expenses to be borne by the succumbing party and paid to the winning party): depending on the value of the requested damages (in general, between EUR 1,320 and EUR 33,000 , Art. 8 Royal Decree 26 October 2007);
  • Council of State (suspension demand):
    • Filing fees: EUR 200 (Art. 70, §1 Royal Decree 30 January 2014);
    • Proceedings indemnity: (between EUR 140 and EUR 1,400 draft Royal Decree);
  • Council of State (annulment demand):
    • Filing fees: EUR 200 (Art. 70, §1 Royal Decree 30 January 2014)
    • Proceedings indemnity: between EUR 140 and EUR 1,400 draft Royal Decree).

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
The Belgian law on remedies distinguishes between the following proceedings:
  • Proceedings related to suspension demands: these proceedings have a suspensive effect and prevent the conclusion of the contract until a decision has been reached by the Court/Council of state;
  • Proceedings related to annulment demands and to damages: these proceedings do not have a suspensive effect.

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC
The Belgian law on remedies regulates the ineffectiveness procedure. This particular procedure applies in cases of violation of the standstill period or in case of a violation of the EU publicity obligations.

This procedure is dealt with by the Court “under” preliminary proceedings (it is a short term procedure but based on the merits).

Alternative penalties can be applied by the judge if he refuses to declare the contract ineffective or if he applies specific conditions to the ineffectiveness. The maximum limit is 15% of the contract value. This penalty is paid to the Treasury.
Bosnia and Herzegovina
By Nedzida Salihovic-Whalen, CMS Sarajevo
1. Where can one find public procurement notifications for Bosnia and Herzegovina (“BiH”)?
2. What are the relevant thresholds for the applicability of Public Procurement Law of Bosnia and Herzegovina?
The Law on Public procurement prescribes different procedures for Primary domestic thresholds and International thresholds. (Art. 6 Law on Public procurement BiH)

Provisions for Primary domestic thresholds:
When the value of the contract is equal or more than BAM 50,000 (approx. EUR 25,564) in case of goods and services or BAM 80,000,00 (approx. EUR 40,903) in case of works, contracting authorities shall apply one of the following procedures (Art. 6 Law on Public procurement BiH):
  • open procedure;
  • restricted procedure with pre-qualification;
  • negotiated procedure with publication of a procurement notice;
  • negotiated procedure without publication of a procurement notice;
  • design contest (Art. 10 Law on Public procurement BiH)

When the value of the contract is lower than BAM 50,000 (approx. EUR 25,564) in case of goods and services or BAM 80,000 (approx. EUR 40,903) in case of works, contracting authorities shall apply one of the following procedures (Art. 6 Law on Public procurement BiH):
  • open procedure;
  • restricted procedure with pre-qualification;
  • negotiated procedure with publication of a procurement notice;
  • negotiated procedure without publication of a procurement notice;
  • design contest (Art. 10. Law on Public procurement BiH) ; or
  • competitive request-for-quotations procedure according to the provisions of the Law on Public procurement BiH (Art. 45, paragraph 1.b Law on Public procurement BiH)

The contract for the procurement of goods, services or works with a value estimated by the contracting authority in an amount equal to or less than BAM 6,000 (approx. EUR 3,068) may be awarded by direct agreement. The contracting authority shall ensure that the total annual value of such purchases do not exceed 10% of its total annual procurement budget. (Art. 45 para 2 Law on Public procurement BiH)

Direct agreement is a procedure in which the contracting authority solicits a price proposal or quotation from a single supplier, service provider or contractor and negotiates or accepts that price as a condition for the final agreement. Such a procedure shall be defined in an internal Book of Rules prepared by the contracting authority following the model prepared by the Public Procurement Agency (Art. 47 Law on Public procurement BiH).

Provisions for International thresholds:
When the contract value, in the case of goods and services, amounts to or exceeds BAM 500,000 (approx. EUR 256,000) for State authorities or BAM 700,000 (approx. EUR 357,904) for local authorities or public entities as defined in the Law on Public procurement BiH, or, in the case of works, amounts to or exceeds BAM 2m (approx. EUR 1,022,584), the procedure shall, except in the case of the services listed in Annex II of Law on Public procurement BiH, be open to international competition. The contracting authority shall apply one of the following procedures (Art. 6 para 3 Law on Public procurement BiH):
  • open procedure;
  • restricted procedure with pre-qualification;
  • negotiated procedure with publication of a procurement notice;
  • negotiated procedure without publication of a procurement notice;
  • design contest (Art. 10 Law on Public procurement BiH)

3. Under which circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
Law on Public procurement BiH prescribes the following procedures (Art. 11 Law on Public procurement BiH):
  • open procedure: The contracting authority shall award a contract on the basis of the open procedure, except in the case of a large or complex procurement which requires the implementation of a prequalification process, in which case a b) restricted procedure with prequalification can be used.
  • negotiating procedure with announcement of procurement: The contracting authorities may exceptionally award contracts by negotiated procedure, without publication of a procurement notice, for example: In cases where in open or restricted procedures only offers that fail to meet the set requirements are submitted, and where the contracting authority repeats the procedure with an appropriate modification of conditions, thereby ensuring that contractual conditions of the procedure are not significantly changed.
  • negotiating procedure without announcement of procurement: in cases enumerated in the Law on Public Procurement, contracting authorities may exceptionally award contracts by negotiated procedure without publication of a procurement notice, when, for example, due to essential, technical and demonstrable or artistic reasons, or due to other reasons relating to the protection of exclusive rights, only certain vendors may procure, provide services or perform work and when there is no other alternative.
  • vacancy for the development concept: not applicable to contracts which in any way include or have been preceded by a design contest.

4. Which decisions of a contracting authority can be appealed?
There are two possibilities of challenging the decisions of a contracting authority:

  • Lodging a complaint with the contracting authority (If the contracting authority fails to consider the complaint within the period specified above, or rejects the complaint, the complainant may file a written appeal with the PRB).
  • The Law on Public Procurement does not specify which decisions can be appealed, but the provisions of the Law on Administrative procedure are used as subsidiary legislation.

    The aforementioned remedy is applicable to all decisions of the contracting authority, related to this law, particularly: the call for tender documents, other declarations within the time limit for tenders, the retirement of a tender, the decision of revocation, the contract award decision, the non-authorization for participation, the invitation to submit a tender, other declarations during the negotiation phase/within the time limit for tenders, the invitation for participation, the non-consideration of a solution during the dialogue stage, the conclusion of the dialogue stage.

5. What are the time limits for appeals? Are further appeals precluded after the expiry of these limits?
  • The appeal can be submitted to the relevant contracting authority at first instance, in writing, within five days from the day when the complainant first became aware or should have become aware of the alleged breach of the law, and no later than one year from the date of the alleged violation.
  • If the contracting authority fails to consider the complaint within the aforementioned term, or rejects the complaint, the complainant may file a written appeal with the PRB within five days from the first working day after the expiry of the aforementioned term, or, in the event that the contracting authority rejects a complaint at first instance, from the date on which the contracting authority informed the complainant of its decision.
  • A decision of the PRB may be appealed in an administrative procedure before the Court of Bosnia and Herzegovina, within 30 days from the date of receipt of the decision.
    (Art. 51, 52 Law on Public Procurement BiH)

6. How long is the standstill period?
As mentioned above, there are two possibilities of challenging the decisions of a contracting authority:
  • Lodging a complaint with the contracting authority
  • Lodging an appeal with the review body PRB


Standstill period for complaint, pursuant to Art. 51 Law on Public Procurement BiH:

The contracting authority is obliged to consider the complaint and reach a reasoned decision within five days from the receipt of the complaint and to inform the complainant about the decision taken and the justification thereto, at the latest, on the following day.

Standstill period for the appeal to the procurement review body PRB, pursuant to Art. 51 Law on Public Procurement BiH:

The Procurement Review Body (“PRB”) – within five days from the first working day after the expiry of the deadline specified in the paragraph above, or in the event that the contracting authority has rejected a complaint at first instance, from the date on which the contracting authority informed the complainant of its decision.
7. Which review bodies exist?
  • The PRB (established as an independent administrative entity with legal personality) is the relevant body at first instance (Art. 49 Law on Public Procurement BiH)
  • The decision of the PRB may initiate administrative proceedings before the Court of Bosnia and Herzegovina within 30 days from the date of receipt of the decision (Art. 52 para 6 Law on Public Procurement BiH)

8. Are there any filing fees for an appeal?
The payment of fees for initiating appeal proceedings are as follows (Art. 50 (b) Law on Public Procurement BiH):
A complainant is obliged to pay fees for the launching of appeal proceedings, amounting to:
  • BAM 500 (approx. EUR 256) for the estimated value of procurement, to BAM 50,000 (approx. EUR 25,564);
  • BAM 800 (approx. EUR 409) for the estimated value of procurement, to BAM 50,000 (approx. EUR 25,564) to 80 000 BAM (approx. EUR 40,903);
  • BAM 2,000 (approx. EUR 1,022) for the estimated value of procurement, to BAM 80,000 (approx. EUR 40,903) to 250 000 BAM (approx. EUR 127,823);
  • BAM 5,000 (approx. EUR 2,556) for the estimated value of procurement, to BAM 250,000 (approx. EUR 127,823) to 400 000 BAM (approx. EUR 204,517);
  • BAM 8,000 (approx. EUR 4,090) for the estimated value of procurement, to BAM 400,000 (approx. EUR 204,516) to 800 000 BAM (approx. EUR 409,033);
  • BAM 12,000 (approx. EUR 6,135) for the estimated value of procurement to BAM 800,000 (approx. EUR 409,033) to 9m BAM (approx. EUR 4,601,627);
  • BAM 25,000 (approx. EUR 12,782) when the value of the purchase is equal to or greater than 9m (approx. EUR 4,601,627)

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
In principle, an appeal has a suspensive effect (Art. 51 Law on Public procurement BiH).

Complaint:
Upon receipt of a written complaint, the contracting authority shall suspend the contract award procedure until the complaint has been fully examined and a decision has been reached within the five days deadline, starting from the receipt of the complaint.
The contracting authority shall, if necessary, extend the period for awarding contracts for five days, starting from the receipt of the complaint.

Appeal:
Upon receipt of a copy of the written appeal, the contracting authority shall suspend the contract award proceedings for a period of five days, unless the PRB orders otherwise.
10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC
(Art. 52. Law on Public procurement BiH)

  • Prior to the conclusion of a public procurement contract, the PRB shall be entitled to take the following steps, if it considers that a decision or action taken by the contracting authority was in breach of any obligation under this law:
    • make a declaration in relation to the legal rules or principles relating to the subject matter of the appeal;
    • nullify any act or decision of the contracting authority, in whole or in part, which does/do not comply with this law, this includes the power to remove any technical or other specifications that are not compliant with this Law;
    • issue an order to contracting authority to rectify any violations and to continue the contract award procedure in accordance with it;
    • order the suspension of the contract award procedure;
    • make a decision on damages to be awarded to the complainant, who, as a tenderer has suffered a loss or damages as a result of a violation of this law.
  • After the conclusion of a public procurement contract, the PRB shall be entitled to take the following measures, if it considers that the decision or action taken by the contracting authority was in breach of any obligation under this law:
    • make a declaration in relation to the legal rules or principles relating to subject matter of the appeal, if it is competent to do so;
    • award damages to the complainant, who, as a bidder suffered a loss or damages as result of a violation of this law.
  • The level of damages awarded in accordance with the aforementioned provisions shall be limited to the costs for preparing a bid or to 10% of the offered price, depending on which of these two values is greater. The PRB can, if it considers that a decision or action of the contracting authority was in breach of an obligation under this law, order the contracting authority to reimburse the complainant for the costs of the appeal proceedings.
  • In case the PRB considers that the officer of the contracting authority has committed a deliberate and intentional violation of the law, the PRB shall, in addition to the above, also have the right to:
    • file a misdemeanour or criminal complaint with the competent court, or
    • impose fines of up to BAM 4,000 ( approx. EUR 2,045)

Bulgaria
Amended as of April 2016
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 could be found on TED (Tenders Electronic Daily). The public competition (which is a simplified open procedure) or the direct negotiations (which is a simplified procedure without a prior call for competition) procedures, as well as the applicable procedures with a lower contract value, do not need to be notified at TED (see below table).

In Bulgaria, all contracting authorities and contracting entities are obliged to have an Internet site containing information on all public procurement procedures they have launched. It is called a buyer profile and should be easily recognisable at the Internet sites of purchasers. Hence, public procurement updates can be found on the Internet sites of each particular purchaser.
2. What are the relevant thresholds for the applicability of Bulgarian Public Procurement Act (PPA)?
ProcedureSocial and Special Services BGN without VATOther services and supplies BGN without VATWorks 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/aFrom 70,000 up to the relevant threshold above270,000 – 5,000,000
Prior notice or invitation (no TED publication)n/a30,000 – 70,00050,000 – 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:
  • Contract in respect of which any of the following conditions is present:
    • The needs of the contracting authority cannot be met without adaptation of readily available solutions;
    • The contract includes innovations or design;
    • 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 or because of the risks attaching to them;
    • 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;
    • The public procurement is for social or other special services (as listed in Annex 2 to the PPA).
  • When the open or restricted procedure has been closed due to the fact that no or only irregular or unacceptable tenders are submitted.

A negotiated procedure without prior publication may particularly be used by contracting authorities:
  • when no tenders or 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 such 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:
    • the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance;
    • competition is absent for technical reasons;
    • protection of exclusive rights, including intellectual property rights.
  • when it is strictly necessary where, for reasons of urgency brought about by exclusive circumstances (unforeseeable events) to the contracting entity, 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 which are 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 having different technical characteristics which 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 it is needed a repetition of construction or services awarded by the same contracting entity to the primary contractor, subject to fulfilment of certain additional conditions; and
  • when the goods to be supplied are produced for the purpose 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 abovementioned 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 recovery of the research and development costs;
  • 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, all actions or omissions of the contracting authority/entity which prevent the tenderer’s participation in the procedure are appealable. In particular this includes:
  • The decision for opening 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.

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.

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 as a final instance.
8. Are there any filing fees for an appeal?
The 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 750 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.

The appeal against the Competition Protection Commission’s decision before the Supreme Administrative Court is subject to a fee in an amount equal to the half of the above fees.
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 a 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 and permitted.
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 he signed contract/after publication of a notice of the signed contract, but not later than one year following signing.

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

Administrative sanctions may be imposed on the contracting authorities/entities for breaches of public procurement regulations.
China
By Colin Liu, CMS Shanghai
1. Where can one find public procurement notifications for China?
  • Public procurement in the People’s Republic of China (“PRC”) is governed by the PRC Government Procurement Law (“GPL”). The current GPL was promulgated on 29 June 2002 and took effect on 1 January 2003. The GPL requires that public procurement notifications be publicly announced in the media, designated by the competent government procurement regulatory authorities, unless commercial secrets are involved (Art 11 GPL). The PRC Ministry of Finance (“MOF”) has designated www.ccgp.gov.cn as the official media to announce the public procurement notifications in the PRC. The aforementioned website is available only in the Chinese language. An English summary of the public procurement notifications can be found under: www.gpa.mofcom.gov.cn/.
  • The GPL provides that domestic goods, services and works must be procured for public procurement, except in any of the following circumstances:
    • The goods, services or works are not available in the PRC; or
    • The goods, services or works cannot be acquired under reasonable commercial conditions in the PRC; or
    • The goods, services or works are procured for use outside the PRC; or
    • It is particularly stated otherwise in other laws or administrative regulations.


The term “domestic goods, services and works” is not defined in the GPL. It needs to be specified further by the implementation regulations of the GPL. In practice, the public procurement notifications specify whether foreign supplies are excluded on a case-by-case basis.
2. What are the relevant thresholds for the applicability of the GPL?
  • If a procurement meets the following conditions, the procurement is subject to the GPL:
    • The procuring entity is a government authority, a public institution or a social organization (jointly “Procuring Entity”);
    • The intended procurement is financed by fiscal funds; and
    • The goods, services and/or works to be procured either fall under the Catalogue for Centralized Procurement (“Catalogue”) or the budgeted amount of the procurement triggers the statutory thresholds.
  • The central government, i.e. the State Council is empowered to determine and publish the state-level Catalogue for government procurements, which are covered by the budget of the central government (“Central Projects”). Every provincial-level government is empowered to determine and publish its respective local Catalogue for government procurements, which are covered by the budget of the provincial government (“Local Projects”). As long as the goods, services and/or works fall under the Catalogue, the procurement is subject to the GPL regardless of whether the budgeted amount of the procurement triggers the statutory thresholds.
  • The State Council determines the statutory thresholds for public procurement of Central Projects if they are not mentioned in the state catalogue. According to the state-level Catalogue published by the State Council for the year 2014, a procurement is subject to the GPL if the relevant goods, services and/or works are not mentioned in the state-level Catalogue but the budgeted amount of the procurement triggers the following thresholds:


  • ItemsBudgeted Amount (RMB)
    Goods 500,000
    Services500,000
    Works600,000


  • Every provincial government determines the statutory thresholds for the public procurement of Local Projects, if they are listed in the relevant local Catalogue. For example, according to the local-level Catalogue published by the Shanghai People’s Government for the year 2014, the procurement is subject to the GPL if the goods, services and/or works are not mentioned in the local-level Catalogue but the budgeted amount of the procurement triggers the following thresholds:

  • ItemsBudgeted Amount (RMB)
    Goods50,000 (for a single purchase)
    500,000 (for multiple purchases)
    Services100,000
    Works500,000


3. Under what circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, or (iv) competitive dialogue?
Statutory procedures for public procurement under the GPL include (i) open procedures, (ii) restricted procedures, (iii) competitive dialogues, (iv) single source procurements, (v) requests for quotation, and other procedures acknowledged by the MOF (Art 26 GPL).

Open procedures
  • The government procurement of a State Project is subject to an open procedure if the budgeted amount of the State Project has triggered the statutory thresholds stipulated by the State Council. According to the state-level Catalogue published by the State Council for the year 2014, the statutory thresholds triggering the open procedures are as follows:


  • ItemsBudgeted Amount (RMB)
    Goods1,200,000
    Services 1,200,000
    Works2,000,000


  • The government procurement of a Local Project is subject to the open procedures if the budgeted amount of the Local Project has triggered the statutory thresholds stipulated by the relevant provincial government. For example, according to the local-level Catalogue published by the Shanghai People’s Government for the year 2014, the statutory thresholds triggering the open procedures are stated below:

  • ItemsBudgeted Amount (RMB)
    Goods1,000,000
    Services1,000,000
    Works2,000,000

Restricted procedures
  • Restricted procedures may be adopted in any of the following circumstances:
    • The number of suppliers is limited due to a technological complexity, special requirements or restrictions of natural environment; or
    • The costs to be paid for the open procedures are unreasonably disproportionate to the total value of the items to be procured.
Competitive dialogues
  • Competitive dialogues may be adopted in any of the following circumstances:
    • After issuing an invitation to tender (i) no suppliers submitted a tender, (ii) there were no qualified tenders, or (iii) a new invitation to tender was not possible; or
    • The nature of the procured item and complexity of the technology makes the determination of detailed specifications or specific requirement impossible; or
    • The time required to prepare an invitation to tender cannot satisfy the urgent requirement of the end-user of the procured items, for reasons neither foreseeable by the Procuring Entity, nor resulting from a delay on part of the Procuring Entity; or
    • It is not possible to calculate the total price in advance due to reasons such as the impossibility of determining in advance the time or quantity of an art procurement, patents, know-how or services; or
    • The public procurement of goods and services does not trigger the statutory thresholds for open procedures; or
    • The open procedures has been exempted by the competent public procurement regulatory authority, although the public procurement of goods and services has triggered the statutory thresholds for open procedures; or
    • The public procurement of works does not trigger the statutory thresholds for open procedures or restricted procedures as set out in the PRC Law on Invitation and Submission of Tenders and its implementation regulations.

In addition, subject to the approval of the competent public procurement regulatory authority, the open procedure for public procurement of goods and services can be converted into a competitive dialogue, if only two suppliers have submitted tenders or only two suppliers are found to substantially respond to the invitation to tender.

Single source procurements
  • Single source procurements may be adopted in case of any of the following circumstances:
    • The goods, services or works can only be procured from a sole supplier; or
    • It is impossible to procure the goods, services or works from another supplier due to an unforeseeable urgency; or
    • It is necessary to continue to procure from the original supplier in order to ensure consistency of the procurement project or compatibility of the ancillary services with the original procured items, and the total funds do not exceed 10% of the procured amount in the original contract; or
    • The public procurement of goods and services does not trigger the statutory thresholds for open procedures; or
    • The open procedures have been exempted by the competent public procurement regulatory authority, although the public procurement of goods and services has triggered the statutory thresholds for open procedures; or
    • The public procurement of works does not trigger the statutory thresholds for open procedures or restricted procedures as set out in the PRC Law on Invitation and Submission of Tenders and its implementation regulations.

Requests for quotation
  • Requests for quotation may be adopted in any of the following circumstances:
    • The goods to be procured have unified specifications and standards, and the supplies are sufficient and the price variation is small; or
    • The public procurement of goods and services does not trigger the statutory thresholds for open procedures; or
    • The open procedures have been exempted by the competent public procurement regulatory authority, although the public procurement of goods and services has triggered the statutory thresholds for open procedures; or
    • The public procurement of works does not trigger the statutory thresholds for open procedures or restricted procedures as set out in the PRC Law on Invitation and Submission of Tenders and its implementation regulations.

4. Which decisions of a contracting authority can be appealed?
A decision can be appealed if the supplier (“Claimant”) believes that the procurement documents, procurement procedures, the acceptance of the tender, or the closing of the public procurement violates its rights and interests (Art 52 GPL).
5. What are the time limits for appeals? Are further appeals precluded after the expiry of these limits?
  • The Claimant may submit a written claim to the Procuring Entity or its agent within seven working days starting from the date on which the Claimant first became aware or should have become aware of the alleged violation of its rights and interests (Art 52 GPL).
  • The Procuring Entity or its agent, as the case may be, should reply to the Claimant or other related suppliers within seven working days following the receipt of the written claim from the Claimant (Art 53 GPL).
  • If the Procuring Entity or its agent, as the case may be, fails to reply to the Claimant within the above time limit or the Claimant is not satisfied with the reply, the Claimant is entitled to file a complaint with the competent public procurement regulatory authority within 15 working days, starting from the expiry of the aforementioned time limit (Art 55 GPL).

6. How long is the standstill period?
No standstill period has been defined by the GPL.
7. Which appeal bodies exist?
The complaint of the Claimant should be submitted to the competent public procurement regulatory authority. The MOF is the competent authority to deal with complaints concerning State Projects. The local financial administrations at the county level or above are the competent authorities to deal with the complaints regarding Local Projects.
8. Are there any filing fees for an appeal?
No filing fees will be charged.
9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
  • Filing the complaint with the competent public procurement regulatory authority does not have an automatic suspensive effect on the procurement. However, after the authority has accepted the complaint of the Claimant, it may, at its sole discretion, issue an administrative order to suspend the procurement activities for a period of up to 30 days (Art 57 GPL).
  • No interim measures are available to suspend problematic procurement activities under the current PRC Law.

10. Ineffectiveness and alternative penalties according to the GPL
  • The following illegal activities of the Procuring Entity and its agent may lead to an ineffectiveness of the public procurement if they affect or may affect the acceptance of the tender or the closing of the transaction:
    • unauthorized use of other procurement procedures when open procedures should be used;
    • unauthorized raising of procurement standards;
    • appointment of an agent who does not possess the qualifications for carrying out the public procurement;
    • use of unreasonable conditions in order to subject a supplier to unequal or discriminatory treatment;
    • negotiating with tenders during the course of invitation to tender;
    • failure to sign a procurement contract with the winning supplier after the letter of acceptance has been issued;
    • refusal to be supervised or inspected by competent authorities;
    • collusion with suppliers;
    • taking of bribers or obtaining other improper benefits in the course of procurement;
    • provision of false information in the course of supervision and inspection carried out by the competent authorities; and/or
    • disclosing the lowest reserve price before opening the tenders.
  • If any of the above illegal activities affect or may affect the acceptance of the tender or the closing of the transaction, the following legal consequences shall apply:
    • If the wining supplier has not yet been determined, the procurement activities will be stopped;
    • If the wining supplier has been determined but the procurement contract has not yet been performed, the procurement contract will be cancelled and a new winning supplier will be selected from the qualified candidates;
    • If the procurement contract has been performed, which has resulted in a loss for the Procuring Entity or other suppliers, the violating party shall be liable for compensation.

Czech Republic
1. Where can one find public procurement notifications for the Czech Republic?

2. What are the relevant thresholds for the applicability of the Procurement Law?
(Act on Public Procurement – APP)
Awarded bySupply contracts (CZK)Services contracts (CZK)Works contracts (CZK)
Minor public contract (APP is not applicable, but principles of non-discrimination and equal treatment must be followed)2,000,0002,000,0006,000,000
Above-the-threshold public contract (full applicability of APP):all contracts coveredall contracts coveredall contracts covered
Czech Republic (i.e. central government authorities) and state allowance organisations (exceptions listed below in bold)3,395,0003,395,000131,402,000
Czech Republic (i.e. central government authorities) and state allowance organisations concerning some services listed in Annex I and Annex II to the APP 5,244,000
Czech Republic (i.e. central government authorities) and state allowance organisations concerning services other than those specified in the previous column 3,395,000
Ministry of Defence concerning products other than those listed in the Annex to the Decree No. 77/2008 Coll.5,244,000
Ministry of Defence concerning products listed in the Annex to the Decree No. 77/2008 Coll.3,395,000
Sector contracting entity10,489,00010,489,000131,402,000
Other public contracting entities5,244,0005,244,000131,402,000

3. Under what circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
  • the contracting authority is free to choose between the open and the restricted procedure – Sec. 21 APP
  • a negotiated procedure with publication can be applied (Sec. 22 APP):
    • if incomplete or unacceptable bids have been submitted in a previous open procedure, restricted procedure, simplified below-the-threshold procedure or competitive dialogue, provided the tender requirements have not substantially changed and the negotiated procedure with publication is commenced without delay following the cancellation of the previous award procedure;
    • in exceptional cases, if it can be reasonably expected that the tender prices quoted by the bidders would be incomparable in view of the nature of the supplies, services or works, or their underlying risks;
    • in the case of public services, especially in the case of insurance, banking, investment, project or audit services, interpreting, legal, or other similar services, unless the nature of the services does not sufficiently specify the subject of the public contract in advance so that it is difficult to specify the procedures laid down in the APP for the open procedure or restricted procedure, in particular with regard to the establishment of evaluation criteria at the start of the open procedure or restricted procedure; or
    • in the case of public works contracts, in respect of works carried out solely for the purpose of research or development and not for profit, or costs related to research and development.
  • a negotiated procedure without publication can particularly be carried out if (Sec. 23 APP):
    • due to technical or artistic reasons, the protection of exclusive rights or reasons resulting from special legislation, the public contract may only be performed by a single supplier;
    • it is necessary to award public contracts due to urgent conditions that have not been caused or could not have been foreseen by the contracting entity, and provided such public contracts cannot be awarded by any other award procedure due to time constraints;
    • no bids were submitted in the previous open procedure, restricted procedure, simplified below-the-threshold procedure or negotiated procedure with publication and in the case of public contracts in the fields of defence or security, in the previous competitive dialogue;
    • only unsuitable bids, pursuant to Sec. 22 (1) lit. a) APP, were submitted in the previous open procedure, restricted procedure, simplified below-the-threshold procedure or negotiated procedure with publication and in the case of public contracts in the fields of defence or security, in the previous competitive dialogue;
    • no requests were submitted to participate in a restricted procedure or negotiated procedure with publication, or, in the case of public contracts in the fields of defence or security, to participate in competitive dialogue.
  • competitive dialogues can be implemented (Sec. 24 APP):
    • in the case of complex contracts and if the open/restricted procedure cannot be used in the contracting authority’s view

4. Which decisions of a contracting authority can be appealed?
  • It is possible to submit objections against all actions of the contracting entity (Sec. 110 APP).

5. What are the time limits for appeals? Are further appeals precluded after the expiry of these limits?
  • In general, the complainant must submit his objections to the contracting entity within 15 days and in the case of a simplified below-the-limit procedure within ten days from the date when the complainant first became aware of the alleged breach. In either case objections must be given before the conclusion of the contract.
  • The complainant must submit his objections to tender requirements to the contracting entity no later than five days following the expiry of the time limit for submitting bids.
  • Objections to the choice of the most suitable bid or to decisions to exclude parties from the tender process must be submitted by the complainant to the contracting entity within 15 days and, in the case of a simplified below-the-limit procedure, within ten days of the date of delivery of notice of the winning bidder for the public contract (Sec. 81 APP) or from the delivery of notice regarding the decision to exclude a party from the tender process.
  • A failure to observe the time limits outlined above shall lead to a preclusion of further appeals.

6. How long is the standstill period?
  • There is a standstill period of 15 days with effect from the date of delivery of notice regarding the choice of winning bidder (Sec. 82 (2) APP).
  • In the case of the simplified below-the-limit procedure the standstill period amounts to ten days – Sec. 110 (4) APP

7. Which review bodies exist?
  • For the first stage of review proceedings (submission of objections) the competent authority shall be the contracting authority itself.
  • The second stage of the review proceedings shall commence by filing a petition with the Czech Competition Office (CCO). If the complaint is not successful, it is possible to appeal to the Chairman of the CCO.
  • The third stage of the review proceedings entails an appeal to the administrative court against a final CCO decision.

8. Are there any filing fees for an appeal?
  • There is no fee for the submission of objections.
  • For second stage proceedings (i.e. before CCO) there is no fee but the petitioner must pay a deposit (to be repaid if the petition is successful) of (§ 115 APP):
    • 1% of the tender price quoted by the petitioner for the entire period of performance of the public contract when submitting the petition to the CCO (subject to a minimum payment of CZK 50,000 capped at CZK 2 m).
    • CZK 100,000 if it is not possible to determine the petitioner’s tender price, if the tender price under evaluation has been set as a price for a performance unit in a framework agreement awarding procedure or in the case of a petition to impose a prohibition on performance of contract.
  • At the third stage (administrative court proceedings), a court fee of CZK 3,000 applies.

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
  • A petition to the CCO does not, by itself, have a suspensive effect.
  • However, an application for an interim injunction (if successful) may prevent the conclusion of a contract in the award procedure or suspend the award procedure (even before the issuance of the CCO decision) – Sec. 117 APP.

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC
  • The CCO may impose a prohibition on performance of the concluded public contract, if the contracting entity (Sec. 118 (2) APP) concludes a public contract without publishing a notice for the commencement of an award procedure.
  • Furthermore, performance of the concluded public contract may be prevented if the following conditions are met:
    • the contracting entity fails to comply with the procedure stipulated by the APP for awarding public contracts, this conduct has or could have substantially affected the selection of the most suitable bid and the contracting entity has concluded a public contract; and
    • the contracting entity concludes the contract either (i) before the expiration of the standstill period (ii) before the expiration of the objections submission period (iii) before the objections have been resolved or (iv) in contravention of an interim injunction.

France
By François Tenailleau and Kawthar Ben Khelil, CMS Paris
Amended as of April 2016
1. Where can one find public procurement notifications for France?
  • Public procurement notifications can be found in the online version of the Bulletin Officiel des Annonces des Marchés Publics (BOAMP). Where the value of the contract exceeds European public procurement directives’ thresholds, contract notices may also be found in the Official Journal of the European Union.
  • Contract notices can also be published in newspapers authorized to publish legal announcements.
  • Other media can also be used, especially for contracts with limited value, such as specialized publications (e.g., Le Moniteur des Travaux publics), local papers or specific websites.

2. What are the relevant thresholds for the applicability of French Public Procurement Law?
(Order n° 2015-899 of 23 July 2015, decree n° 2016-360 of 25 March 2016 and decree n° 2015-1904 of 30 December 2015)

The decree of 25 March 2016 provides for intermediary thresholds in addition to the thresholds resulting from European directives. Nevertheless, the fundamental principles of public procurement, such as equal access to public procurement and transparency, shall be observed regardless of the value of the contract (even below EUR 25,000).

  • Contracts below EUR 25,000 may be concluded without prior publication (decree of 25 March 2016, art. 30-I-8°). The contracting authority shall nevertheless choose a relevant offer, make good use of public moneys and refrain from systematically contracting with the same economic operator where the contracting authority’s needs may be met by a multiplicity of offers.
  • Generally speaking, for contracts whose estimated value is below the European thresholds, conditions of publication and competition processes can be freely determined by the contracting authority (procédure adaptée), provided they are adapted to the object and specificities of the contract, the number and location of the economic operators likely to be interested in the contract, and the circumstances of the contract to be concluded (decree of 25 March 2016, art. 27).
  • Contracting authorities may also resort to the procedure referred to as “adaptée” for contracts for social and other specific services, regardless of their value (decree of 25 March 2016, art. 28).
  • For contracts worth between EUR 90,000 and the thresholds mentioned below, a contract notice has to be published either in the BOAMP or in a newspaper authorized to publish legal announcements. The contracting authority shall appreciate whether, according to the nature or amount of the products, services or works concerned, a notice in a specialized newspaper corresponding to the economic sector or in the Official Journal of the European Union is in addition necessary to guarantee an appropriate information for reasonably vigilant economic operators that could be interested in contracting (decree of 25 March 2016, art. 34-I-1°-b).

Contracting authorities involvedSupply contractsServices contractsWorks contracts
Central government authorities and central public institutionsEUR 135,000EUR 135,000EUR 5,225,000
Local government authorities and local public institutions, public health institutions (hospitals)EUR 209,000EUR 209,000EUR 5,225,000
Utility Services Sector (water, energy, transport and postal services)EUR 418,000EUR 418,000EUR 5,225,000

  • For contracts whose values exceed the European thresholds, a contract notice also has to be published in the Official Journal of the European Union.

3. Under which circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure without prior publication, (iv) competitive procedure with negotiation, (v) competitive dialogue?
  • The contracting authority is free to choose among the open and the restricted procedure (order of 23 July 2015, art. 42; decree of 25 March 2016, art. 66).
  • Contracting authorities may a negotiated procedure without prior publication of a contract notice, in the specific cases and circumstances referred to in article 30 of the decree of 25 March 2016:
    • insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable for and not attributable to the contracting authority, the time limits for the open procedure, restricted procedure, negotiated procedure with prior publication or competitive dialogue cannot be complied with;
    • where no tenders, no suitable tenders, no requests to participate or no suitable requests to participate have been submitted in response to (i) an open procedure or a restricted procedure carried out by a contracting authority, (ii) a tender procedure carried out by a contracting entity, or (iii) a tender procedure related to (a) a contract whose value is below the European thresholds or (b) related to social or other specific services or legal services involving the representation of the contracting authority in judicial proceedings, provided the initial conditions of the public contract are not substantially altered;
    • where the works, supplies or services can be supplied only by a particular economic operator for any of the following reasons : (i) the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance; (ii) for technical reasons ; (iii) the protection of exclusive rights, including intellectual property rights;
    • regarding public supply contracts, (i) for additional deliveries by the original supplier which are 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 authority to acquire supplies having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; the duration of such contracts as well as that of recurrent contracts shall not, as a general rule, exceed three years; (ii) for supplies quoted and purchased on a commodity market;
    • for the purchase of supplies or services on particularly advantageous terms, from either a supplier which is definitively winding up its business activities, or, subject to the 3° of article 45 of order dated 23 July 2015, a supplier under a procedure set forth by Book VI of the French commercial code (except those referred to in Title I), or a similar procedure under the national laws of another State;
    • for public service contracts, where the contract concerned follows a design contest and is to be awarded to the winner or one of the winners of the design contest; where there are several winners in the design contest, all must be invited to participate in the negotiations;
    • for new works or services consisting in the repetition of similar works or services entrusted to the economic operator to whom the same contracting authority awarded the original contract after publication and putting into competition; the possible use of this procedure for similar works or services shall be provided for in the original contract and the total estimated cost of the subsequent works or services shall be taken into consideration when the original contract is concluded; this procedure may be used only during the three years following the conclusion of the original contract;
    • for public procurement which value is below EUR 25,000;
    • below EUR 90,000, for supplies of non-school books concluded by contracting authorities referred to in 1° and 2° of article 3 of Act n° 81-766 of 10 August 1981, for their own needs or the enrichment of the collections of libraries receiving the public;
    • for public procurement which value is below the European thresholds, and competition is impossible or obviously useless according to its object or the lack of competition in the sector considered;
    • regarding contracting authorities, in respect of public supply contracts, where the products involved are manufactured purely for the purpose of research, experimentation, testing, or development and not with the aim of ensuring profitability or recovering research and development costs;
    • regarding contracting entities, where (i) the contract is concluded for the purpose of research, experimentation, testing, or development and not with the aim of ensuring profitability or recovering research and development costs; (ii) 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 the normal market price.
  • Contracting authorities may apply a competitive procedure with negotiation (procédure concurrentielle avec négociation) or competitive dialogue, in the specific cases and circumstances referred to in article 25-II of the decree of 25 March 2016:
    • the needs of the contracting authority cannot be met without adaptation of readily available solutions;
    • the needs of the contracting authority include innovative solutions;
    • the public contract contains design services;
    • the contract cannot be awarded without prior negotiations because of specific circumstances related to the nature, the complexity or the legal and financial make-up or because of the risks attached to them;
    • 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 reference;
    • where, in response to an open or restricted procedure, only irregular or unacceptable bids within the meaning of article 59 of the decree of 25 March 2016 have been submitted to the contracting authority, provided the initial conditions of the public contract are not substantially altered. The contracting authority is not held to publish a contract notice where it includes in the procedure only the tenderers which, during the prior open or restricted procedure, submitted tenders in accordance with the formal and deadline requirements of the procurement procedure.
  • In the utility services sectors, the use of the negotiated procedure with prior publication (procédure négociée avec mise en concurrence préalable) by contracting entities is always possible (decree of 25 March 2016, art. 26).

4. Which decisions of a contracting authority can be appealed?
An appeal is possible against the tendering procedure and the contract awarded itself.
5. What are the time limits for appeals? Are further appeals precluded after the expiry of these limits?
  • The applicable time limit depends on the type of appeal filed by the claimant:
    • interlocutory procedure before the execution of the contract (référé précontractuel) regarding breaches of freedom of access to public procurement or equal treatment: before the conclusion of the contract (i.e. usually before the standstill period expires);
    • interlocutory procedure after the execution of the contract (référé contractuel) for a limited number of breaches (i.e. to sanction the contracting authority when it has made it impossible for the economic operator to file a référé précontractuel: see § 10 below): either (i) 31 days after the publication or notification of the award of the contract or (ii) six months from the day following the date of execution of the contract if neither the contract award notice has been published nor the award of the contract has been notified;
    • appeal challenging the validity of the contract where serious breaches committed by the contracting authority may lead to the cancellation of the contract (review which has been opened by French administrative case law, concerning contracts of a public nature only: see CE, Ass., 4 April 2014, Département de Tarn-et-Garonne, n° 358994): this review allows interested parties to contest the validity of the contract within two months from the day the contracting authority complied with the appropriate publication measures.
  • The failure to observe these time limits leads to preclusion.

6. How long is the standstill period?
  • Regarding procedures with respect to public contracts whose value is estimated to be not less than European thresholds, the standstill period lasts at least 11 days from the day when the announcement of the contract award decision is sent to the unsuccessful tenderers where electronic means are used to inform all the tenderers concerned.
  • When the notification has been made by electric means, the standstill is 16 days.
  • No standstill period is required for (i) public contracts that are awarded to the only economic operator which has participated in the tender procedure, (ii) the award of contracts based on a framework agreement or specific contracts based on a dynamic purchasing system.

(decree of 25 March 2016, art. 101)
7. Which review bodies exist?
  • Concerning interlocutory procedures (référé précontractuel, référé contractuel), the review body is the President (or another judge they have appointed within their court) of the locally competent administrative court of first instance (concerning contracts of an administrative nature)1, or the locally competent2 judicial court of first instance (regarding contracts of a private nature). Thereafter, an appeal may be filed with the Conseil d’Etat (the highest French administrative court) concerning contracts of a public nature, or before the Cour de cassation (the highest French judicial court) regarding contracts of private nature.
  • The appeal challenging the validity of the contract (referred to as “Tarn-et-Garonne review”) shall be introduced before the administrative court of first instance. A review may be filed before the administrative court of appeal. Eventually, the Conseil d’Etat shall have jurisdiction to review decisions rendered by the administrative courts of appeal.

8. Are there any filing fees for an appeal?
  • There are currently no fees per se3 for a judicial appeal before the administrative or judicial courts.

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
  • If an appeal is filed before the conclusion of the contract (référé précontractuel), it shall necessarily have an automatic suspensive effect (as the contracting authority shall not sign the contract) starting from when the appeal is notified to the contracting authority until the decision has been made by the judge.
  • Others reviews do not have any suspensive effect by themselves but it is still possible to apply for interim measures to this end; the judge may even spontaneously decide to suspend the performance of the contract when the contract is of a public nature4 (e.g., within the framework of an interlocutory procedure filed after the signing of the contract (référé contractuel), the judge may order that the performance of the contract be suspended until a decision has been reached, unless they consider that, given all the interests likely to be affected and in particular the public interest, the negative consequences of this measure could prevail over its advantages).

10. Ineffectiveness and alternative penalties according to Dir 2007/66/EC
  • A public contract is considered ineffective:
    • when no publication measure required for the conclusion of the contract has been observed;
    • if the contract has been awarded without publication in the Official Journal of the European Union although it was required;
    • when the applicable competition conditions have not been observed in the awarding procedure of a contract based on a framework agreement or based on a dynamic purchasing system;
    • if the contract has been signed before the expiry of the standstill period or during the period of suspension running from the notification of an interlocutory procedure filed before the conclusion of the contract (référé précontractuel) when, in addition, two conditions are fulfilled (i) the infringement has deprived the tenderer of the possibility to apply for a review of the tendering procedure before the conclusion of the contract, and (ii) the alleged violation of publication and competition obligations has affected the chances of the tenderer applying for review to obtain the contract.

(Art L. 551-18 of the Code de justice administrative (French Code of Administrative Justice – the “CJA”, concerning contracts of a public nature)

  • If the ineffectiveness encounters reasons relating to a public interest, the judge can impose alternative penalties. They must be effective, proportionate and dissuasive. Such alternative penalties may consist in (i) the early termination of the contract and/or (ii) the shortening of the duration of the contract, and/or (iii) fines imposed on the contracting authority (which shall not exceed 20% of the value of the contract (CJA, art. L. 551-19, L. 551-20, L. 551-22, regarding contracts of a public nature).

Germany
By Sven Brockhoff/Rajiv Chandna/Matthias Kuß/Thomas Markpert/Jan Helge Mey/Madeleine Riemer/Christian Scherer-Leydecker/Jakob Steiff/Volkmar Wagner, CMS Germany
Amended as of April 2016

The procurement directives 2014/23/EU, 2014/24/EU, and 2014/25/EU are transposed into German law as of April 18th 2016.
1. Where can one find public procurement notifications for Germany?

2. What are the relevant thresholds for the applicability of German procurement law?
  • Above the EU thresholds, the following national regulations apply:


    All services/suppliesAct Against Restraints on Competition (Gesetz gegen Wettbewerbsbeschränkungen – GWB), Section 4 – Award of Public Contracts (§§ 97 et seq.)
    All services/supplies except services/supplies within the transport, water and energy sectors or concessionsRegulations on the Award of Public Contracts (Verordnung über die Vergabe öffentlicher Aufträge – VgV)
    Construction servicesSection 2 of the Regulations on Contract Awards for Construction Services (Vergabe- und Vertragsordnung für Bauleistungen – VOB/A-EU)
    Services/supplies within the transport, water and energy sectorsRegulations on Contract Awards in the Transport, Water and Energy Sectors (Sektorenverordnung – SektVO)
    ConcessionsRegulations on the Award of Concession Contracts (Konzessionsvergabeverordnug – KonzVgV)
    Services/supplies within the defence and security sectorRegulations on Contract Awards in the Defence and Security Sector (VSVgV)
    Construction services within the defence and security sectorSection 3 of the Regulations on Contract Awards for Construction Services (Vergabe- und Vertragsordnung für Bauleistungen –VOB/A-VS)


  • Below the EU thresholds, the following national regulations are applicable:

    Construction servicesSection 1 of VOB/A
    Supplies and servicesSection 1 of VOL/A


  • For the permissibility of a direct awarding of contracts and application of the restricted procedure, the following thresholds apply on a national and the state level (in EUR):


  • Supplies and Services
    Federation (Bund)/Federal state (Bundesland)Direct AwardRestricted Tender Procedure
    Federationnot definednot defined
    Baden-Wuerttemberg20,00050,000
    Bavaria (local communities)30,000100,000
    Bavaria (state)25,000not defined
    Berlin10,000100,000
    Brandenburg (local communities)100,000100,000
    Brandenburg (state)20,00020,000
    Bremen10,00040,000
    Hamburg50,000100,000
    Hesse50,000 to 100,000207,000
    Mecklenburg-Western Pomerania100,000100,000
    Lower Saxony25,00050,000
    North Rhine-Westphalia (local communities)100,000100,000
    North Rhine-Westphalia (state)15,00050,000 to 100,000
    Rhineland-Palatinate20,00040,000
    Saarland10,000 to 15,00050,000 to 100,000
    Saxony25,000not defined
    Saxony-Anhalt25,00050,000
    Schleswig-Holstein100,000100,000
    Thuringia20,00050,000


    Construction Services
    Federation (Bund)/Federal state (Bundesland)Direct AwardRestricted Tender Procedure
    Federation10,000a. Extension work, landscape construction, road equipment: up to 50,000
    b. Remaining work up to 100,000
    c. Underground construction engineering, traffic route construction and civil engineering up to 150,000
    Baden-Wuerttemberg (local communities)20,00050,000 to 150,000
    Baden-Wuerttemberg (state)10,00050,000 to 150,000
    Bavaria (local communities)30,000125,000 to 500,000
    Bavaria (state)10,00050,000 to 150,000
    Berlin20,000 to 50,000200,000 to 500,000
    Brandenburg (local communities)100,0001,000,000
    Brandenburg (state)20,000200,000
    Bremen10,00050,000 to 150,000
    Hamburg100,0001,000,000
    Hesse100,000 per technical lot100,000 to 1,000,000 per technical lot
    Mecklenburg-Western Pomerania200,0001,000,000
    Lower Saxony25,00050,000 to 150,000
    North Rhine-Westphalia (local communities)100,0001,000,000
    North Rhine-Westphalia (state)not defined50,000 to 150,000
    Rhineland-Palatinate10,00050,000 to 150,000
    Saarland10,00050,000 to 150,000
    Saxony25,00050,000 to 150,000
    Saxony-Anhalt10,00050,000 to 150,000
    Schleswig-Holstein100,0001,000,000
    Thuringia50,000150,000


  • Additional information can be found in the following fact sheet provided by the Contract Advisory Centre Hesse:
    http://www.absthessen.de/pdf/Wertgrenzen_Bund_%20Bundesländer_2016.pdf
  • Federal states have also enacted state laws providing for additional procurement rules, which are in part applicable only in relation to contracts exceeding specific thresholds.

3. Under which circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii)negotiated procedure (competitive procdure with negotation/negotiated procedure without prior publication), (iv) competitive dialogue, (v) innovation partnership?
  • Above the EU thresholds

  • Above the EU thresholds and depending on the relevant German regulations (see Question 2) the circumstances for the applicability of the different procedures are the following ones:


  • Section 2 VOB/A
    (applicable for construction services, see Question 2)
    Open procedure (Offenes Verfahren):
    • The contracting authority can choose at its option the open procedure or the restricted procedure with a prior call for competition.
    (§ 3a EU (1) VOB/A)
    Restricted procedure with a prior call for competition (nicht offenes Verfahren mit Teilnahmewettbewerb):
    • The contracting authority can choose at its option the open procedure or the restricted procedure with a prior call for competition.
    (§ 3a EU (1) VOB/A)
    Negotiated procedure with a prior call for competition (Verhandlungsverfahren mit Teilnahmewettbewerb) is permissible:
    • If the needs of the contracting authority cannot be met without adaption of readily available solutions.
    • If the contract includes design or innovative solutions.
    • If the contract cannot be awarded without prior negotiations because of specific circumstances related to the nature, the complexity or the legal and financial makeup or because of the risks attaching to them.
    • If 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 reference within the meaning of points 2 to 5 Annex VII of Directive 2014/24/EU.
    • If an open or a restricted procedure has been annulled because only irregular or unacceptable tenders were submitted.
    (§ 3a EU (2) VOB/A)
    Negotiated procedure without a call for competition (Verhandlungsverfahren ohne Teilnahmewettbewerb) is permissible:
    • If in response to an open or restricted procedure
      • only irregular or unacceptable tenders were submitted, and
      • the negotiated procedure includes all of, and only, the tenderers from the prior procedure which have the professional qualification and the capability and were not excluded due to § 6e EU VOB/A.
    • If in response to an open or restricted procedure
      • no tenders or no requests to participate were submitted or
      • only tenders or requests to participate from tenderers were submitted which do not have the professional qualification or the capability or which were excluded due to § 6e EU VOB/A or
      • only tenders were submitted which do not satisfy the conditions of the procurement documents,
    • provided that the initial procurement documents are not substantially altered.
    • If the works, supplies or services can be supplied only by a particular economic operator because
      • the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance or
      • competition is absent for technical reasons or
      • the protection of exclusive rights, including intellectual property rights,
    • provided that no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement.
    • If it is strictly necessary for reasons of extreme urgency brought about by events unforeseeable by the contracting authority that the time limits for the open or restricted procedures or competitive procedures with negotiation cannot be complied with.
    • If similar works are repeated and the works are entrusted to the economic operator by the same contracting authority that awarded the original contract, provided that those works are in conformity with a basic project for which the original contract was awarded pursuant to a procedure in accordance with § 3a EU VOB/A.
    (§ 3a EU (3) VOB/A).
    Competitive dialogue (Wettbewerblicher Dialog) is permissible:
    • In all cases where a negotiated procedure with a prior call for competition may be applied.

    (§ 3a EU (4) VOB/A).
    Innovation partnership (Innovationspartnerschaft) is permissible:
    • If the aim is the development of innovative works as well as the subsequent purchase of the resulting works, provided that the needs of the contracting authority cannot be satisfied by readily available works on the market.
    (§ 3a EU (5) VOB/A).

    VgV
    (applicable for all services/supplies except services/supplies within the transport, water and energy sectors or concessions, see Question 2)
    Open and Restricted procedure (Offenes und nicht offenes Verfahren)
    • The contracting authority can choose at its option the open procedure or the restricted procedure with a prior call for competition.
    (§ 14 (2) VgV).
    Negotiated procedure with a prior call for competition (Verhandlungsverfahren mit Teilnahmewettbewerb) is permissible:
    • If the needs of the contracting authority cannot be met without adaption of readily available solutions.
    • If the contract includes design or innovative solutions.
    • If the contract cannot be awarded without prior negotiations because of specific circumstances related to the nature, the complexity or the legal and financial makeup or because of the risks attaching to them.
    • If 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 reference within the meaning of points 2 to 5 Annex 1of VgV.
    • If an open or a restricted procedure has been annulled because only irregular or unacceptable tenders were submitted.
    (§ 14 (3) VgV)
    Negotiated procedure without a call for competition (Verhandlungsverfahren ohne Teilnahmewettbewerb) is permissible:
    • If in response to an open or restricted procedure no or no suitable tenders or no suitable requests to participate were submitted provided that the initial conditions of the contract are not substantially altered.
    • If the contract can be supplied only by a particular economic operator because
      • a unique work of art or a unique artistic performance shall be created or acquired, provided that no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement or
      • competitions is absent for technical reasons, provided that no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement or
      • the protection of exclusive rights, including industrial property rights.
    • If it is strictly necessary for reasons of extreme urgency brought about by events unforeseeable by the contracting authority that the time limits for the open or restricted procedures or competitive procedures with negotiation cannot be complied with.
    • If the products involved are manufactured purely for the purpose of research, experimentation, study or development; however, contracts awarded pursuant to this point shall not include quantity production to establish commercial viability or to recover research and development costs.
    • If additional deliveries are purchased by the original supplier which are intended either as a partial replacement of supplies or installations or as the extension of existing supplies or installations and a change of supplier would oblige the contracting authority to acquire supplies having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; the duration of such contracts as well as that of recurrent contracts shall not, as a general rule, exceed three years.
    • If the supplies are quoted and purchased on a commodity market.
    • If there are particularly advantageous terms for the purchase of supplies or services, from either a supplier which is definitively winding up its business activities, or the liquidator in an insolvency procedure, an arrangement with creditors, or a similar procedure under national laws or regulations.
    • If the contract concerned follows a design contest in the meaning of § 69 VgV and the contract is to be awarded, under the rules provided for in the design contest, to the winner or one of the winners of the design contest; in the latter case, all winners must be invited to participate in the negotiations.
    • If similar services shall be repeated and the services are entrusted to the economic operator by the same contracting authority that awarded the original contract, provided that those works are in conformity with a basic project for which the original contract was awarded pursuant to a procurement procedure but not within a negotiated procedure without a call for competition.
    (§ 14 (4), (5) VgV)
    Competitive dialogue (Wettbewerblicher Dialog) is permissible:
    • In all cases were a negotiated procedure with a prior call for competition may be applied.
    (§ 14 (3) VgV).
    Social and other specific services (in the meaning of § 130 GWB):
    • The contracting authority can choose at its option the open procedure or the restricted procedure with a prior call for competition as well as the negotiated procedure with a prior call for competition, the competitive dialogue and the innovation partnership. Negotiated procedure without a call for competition may only be applied under circumstances set out in § 14 (4) VgV.
    (§ 65 (1) VgV)
    Architectural and engineering services:
    • Competitive procedure with a prior call for competition or competitive dialogue may be applied regularly.
    (§ 74 VgV)

    SektVO
    (applicable for services/supplies within the transport, water and energy sectors, see Question 2)
    • The contracting authority may choose to its option the open procedure, the restricted procedure and the negotiated procedure with a prior call for competition.
    (§ 13 (1) SektVO)
    • The negotiated procedure without a call for competition is permissible:
      • If no or no suitable tenders or no or no suitable requests to participate were submitted in response to a procedure with a prior call for competition, provided that the initial conditions of the contract are not substantially altered.
      • If the contract is purely for the purpose of research, experiment, study or development, and not for the purpose of securing a profit or of recovering research and development costs, and insofar as the award of such contract does not prejudice the competitive award of subsequent contracts which do seek, in particular, those ends.
      • If the contract can be supplied only by a particular economic operator because
        • a unique work of art or a unique artistic performance shall be created or acquired, provided that no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement
        • competition is absent for technical reasons, provided that no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement
        • the protection of exclusive rights, including intellectual property rights.
      • If it is strictly necessary for reasons of extreme urgency brought about by events unforeseeable by the contracting authority that the time limits for open procedures, restricted procedures and negiated procedures with prior call for competition cannot be complied with. The circumstances invoked to justify extreme urgency shall not in any event be attributable to the contracting entity.
      • In case of supply contracts for additional deliveries by the original supplier which are intended either as a partial replacement of supplies or installations or as the extension of existing supplies or installations, and a change of supplier would oblige the contracting entity to acquire supplies having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance.
      • If new works or services consisting in the repetition of similar works or services are assigned to the contractor to which the same contracting authorities awarded an earlier contract, provided that such works or services are conform to a basic project which was awarded in a procurement procedure but not within a comparative procedure with negotiation without a call for competition.
      • If the supplies are quoted and purchased on a commodity market.
      • If for 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.
      • If the purchase of supplies or services can be made under particularly advantageous conditions from either a supplier which is definitively winding up its business activities or the liquidator in an insolvency procedure, an arrangement with creditors or a similar procedure under national laws or regulations.
      • If the service contract concerned follows a design contest in the meaning of § 60 SektVO and is to be awarded, under the rules provided for in the design contest, to the winner or to one of the winners of that contest; in the latter case, all the winners shall be invited to participate in the negotiations.
    (§ 13 (2) SektVO)
    The competitive dialogue can be applied if it happens in accordance with the conditions set up in the SektVO for that kind of procedure.
    (§§ 13 (1), § 17 SektVO)
    The innovation partnership can be chosen if the aim is the development of an innovative service as well as the subsequent purchase of the resulting service, provided that the needs of the contracting authority cannot be satisfied by readily available works on the market.
    (§§ 13 (1), 18 (1) SektVO)

    KonzVgV
    (applicable for concessions, see Question 2)
    • No specified procurement procedures have to be chosen. The contracting authority can arrange the award procedure freely but in accordance with the KonzVgV.
    (§ 12 (1) KonzVgV)

    VSVgV
    (applicable for contracts involving defence and security aspects, see Question 2)
    • In general, contracts are awarded in a restricted procedure with a prior call for competition or in a negotiated procedure with a prior call for competition.
    (§ 11 (1) VSVgV)
    • In justified exceptional cases – the concrete conditions are not set out in detail – the contracting authority may award contracts in a negotiated procedure without a call for competition or in a competitive dialogue.
    (§ 11 (1) VSVgV)


  • Below the EU thresholds

  • Below the EU thresholds and depending on the corresponding German regulations (see Question 2) the conditions under which the different procedures are applicable are as follows:

  • Section 1 VOB/A
    (applicable for construction services, see Question 2)
    Open procedure (Öffentliche Ausschreibung)
    • The contracting authority has to choose the open procedure as far as the peculiarity of the contract or specific circumstances do not justify another procedure.
    (§ 3a (1) Section 1 VOB/A)
    Restricted procedure (beschränkte Ausschreibung) is permissible:
    • If the contract value does not exceed the following thresholds:
      • Extension work, landscape construction, road equipment: up to EUR 50,000
      • Underground construction engineering, traffic route construction and civil engineering: up to EUR 150,000
      • Remaining work: up to EUR 100,000.
    • If the award did not have an acceptable result.
    • If an open procedure is inappropriate for other reasons.
    (§ 3a (2) Section 1 VOB/A)
    Restricted procedure with a prior call for competition (beschränkte Ausschreibung mit Teilnahmewettbewerb) is permissible:
    • If the contractual performance can be adequately provided only by a limited number of companies.
    • If the preparation of the offer involves disproportionate efforts.
    (§ 3a (3) Section 1 VOB/A)
    There are no regulations regarding a negotiated procedure in Section 1; instead, a direct award (Freihändige Vergabe) is permissible:
    • If the open procedure or the restricted procedure is inexpedient, in particular if
      • the services can be supplied for specific reasons only by a particular economic operator
      • the services are necessary for reasons of urgency
      • the services cannot be established that clearly and exhaustively that sufficiently comparable tenders can be expected
      • an open or restricted procedure has been annulled and within a new procedure an acceptable result is not to be expected
      • if it is necessary due to reasons of secrecy
      • if little service cannot be separated from a bigger one without any disadvantage.
    • However, the principles of competition are applicable and if relevant for the European market a negotiated procedure with a prior call for competition is required.
    • If the contract value does not exceed the threshold of EUR 10,000 (excluding VAT).
    (§ 3a (4) Section 1 VOB/A)

    Section 1 VOL/A
    (applicable for supplies and services, see Question 2)
    Open procedure (Öffentliche Ausschreibung)
    • The contracting authority has to choose the open procedure if another procedure is not permissible.
    (§ 3 (2) VOL/A)
    Restricted procedure with a prior call for competition (beschränkte Ausschreibung mit Teilnahmewettbewerb) is permissible:
    • If the service can be adequately provided only by a limited number of companies.
    • If the open procedure is inexpedient due to other reasons.
    (§ 3 (3) VOL/A)
    Restricted procedure without a call for competition (beschränkte Ausschreibung ohne Teilnahmewettbewerb) is permissible:
    • If an open procedure has not yielded any economically advantageous result.
    • If an open procedure involves disproportionate efforts for the contracting authority or the tenderers.
    (§ 3 (4) VOL/A)
    There are no regulations regarding a negotiated procedure in Section 1; instead, a direct award (Freihändige Vergabe) is permissible:
    • If a public or restricted procedure has been annulled and a repetition holds no prospect of an economically advantageous result.
    • If subsequent to development services, contracts of adequate scope and for adequate periods must be awarded to enterprises involved in the development.
    • If the supplies of goods or the provision of services are needed for the performance of specialist scientific-technical tasks in research, development and studies that are not intended for the purpose of maintaining the general operations and infrastructure of an agency of the contracting authority.
    • For repeat contracts of minor value following on an existing contract no higher price is expected than for the initial performance and the repeat contracts altogether do not exceed 20 per cent of the value of the initial contract.
    • If replacement or accessory parts for machinery and equipment are to be obtained from the initial supplier and these parts cannot be procured at adequate quality or on economically advantageous terms and conditions from other enterprises.
    • If necessary for reasons of secrecy.
    • If due to circumstances which could not have been foreseen by the contracting authorities, the service is of special urgency and the reasons for such urgency cannot be ascribed to the conduct of the contracting authorities.
    • If the type and scope of services cannot be described clearly and exhaustively enough to be able to expect adequately comparable tenders.
    • If it is permissible under executive regulations of a federal minister or a federal state minister.
    • If contracts are to be awarded solely to workshops for disabled persons.
    • If contracts are to be awarded solely to penal establishments.
    • If the services can be supplied for specific reasons only by a particular economic operator.
    • However, the principles of competition are applicable and if relevant for the European market a negotiated procedure with a prior call for competition is required.
    • If the contract value does not exceed the threshold of EUR 500 (excluding VAT).
    (§ 3 (5, 6) VOL/A)
    A direct purchase (Direktkauf) is permissible:
    • If the contract value does not exceed the threshold of EUR 500 (excluding VAT)
    (§ 3 (6) Section 1 VOL/A)

4. Which decisions of a contracting authority may be appealed?
  • In theory, any decisions of the contracting authority issued during the preparing phase or within an award procedure that violates or might violate rights of the tenderer may be appealed.
  • In fact, decisions below the EU threshold can be appealed successfully only in rare cases because there is no well-established procurement law review procedure. A decision above the EU threshold may be appealed in a specific review procedure. Therefore, such an appeal appears more promising though there are still many legal pitfalls to avoid such as short imperative time limits and formal requirements. It is therefore strongly recommended to consult a lawyer specialized in the area of procurement law at an early stage.

5. What are the time limits for appeals? Are further appeals precluded after the expiry of these limits?
A specific legal framework for appeals in procurement procedures exists only above the EU thresholds. The procedure may be separated into 3 stages. Every stage has its specific time limits. Generally, the time limits are quite short. It should be noted that procedures and time limits might differ. The following instructions can be used as a general guideline. Failure to meet a deadline leads to preclusion and the procedure will be inadmissible or respectively the specific violation cannot be subject of the procedure.
  • Stage 1: Raising an objection (Rüge) against the contracting authority
    If a violation comes to the appellant´s attention before an application of a review procedure (Nachprüfungsverfahren) has been filed, the violation shall be reported within ten days to the contracting authority. Notwithstanding this requirement, the objection shall be reported by the end of the period specified in the notice for the submission of a tender if a violation becomes apparent from the tender notice. If a violation of provisions becomes apparent from the tender documents only, the objection shall be reported by the end of the period specified in the notice for submission of a tender.
  • Stage 2: Review procedure (Nachprüfungsverfahren)
    If the contracting authority is unwilling to redress the objection, the time limit to start a review procedure is 15 calendar days from receipt of the notification that it rejects the objection.
  • Stage 3: Immediate complaint (Sofortige Beschwerde)
    If the claim was unsuccessful, the case may be brought to the higher regional court (Oberlandesgericht) within two weeks from the date of service (Zustellung) of the decision.

6. How long is the standstill period?
  • Above EU threshold;
    • The standstill period amounts to 15 calendar days with effect from the day following the day on which the contracting authority dispatches the contract award decision in writing to the unsuccessful tenderers and candidates; the standstill period is reduced to ten calendar days if fax or electronic means are used (§ 134 (2) GWB).
    • There is no standstill period in cases in which negotiation procedures are justified without previous notification on grounds of extreme urgency (§ 134 (3) GWB).
  • Below EU threshold:
    • On a national level, there is no mandatory standstill period.
    • On a state level, some states stipulate standstill periods ranging from seven to ten days prior to the conclusion of the contract (see § 12 (1) Procurement Act Mecklenburg-Western Pomerania, § 8 (1) Procurement Act Saxony, § 19 (1) Procurement act Saxony-Anhalt and § 19 (1) Procurement Act Thuringia).

7. Which review bodies exist?
  • Above EU threshold:
    • Authority of first instance:
      • Review procedure (Nachprüfungsverfahren) by public procurement tribunals (Vergabekammern).
      • If the contract is attributable to the Federation, review by the national public procurement tribunals (Vergabekammern des Bundes) established at the Federal Cartel Office (Bundeskartellamt) (§§ 156 (1), 158 (1) GWB).
      • For other contracts, review by the competent state public procurement tribunals (Vergabekammern der Länder) established in the form of administrative bodies.
    • Authority of second instance: immediate complaint (Sofortige Beschwerde) to the award division (Vergabesenat) of the court of appeal (Oberlandesgericht), having jurisdiction over the seat of the public procurement tribunal (§ 171 (3) GWB).
    • An overview of procurement tribunals and award divisions is available via the following link: www.bundesanzeiger-verlag.de.
  • Below EU threshold:
    • On a national level, there are no specific public procurement tribunals or other dedicated review bodies.
    • On a state level, some states have established review bodies, including Hesse, Saxony, Saxony-Anhalt and Thuringia (see § 20 Procurement Act Hesse, § 8 (2) Procurement Act Saxony, § 19 (2) and (3) Procurement Act Saxony-Anhalt, § 19 (2) and (3) Procurement Act Thuringia).
    • Apart from that, competitors may also bring actions before ordinary civil courts to prevent the contracting authority from entering into contracts. To secure their rights, they may seek interim legal protection under §§ 935 et seq. German Code of Civil Procedure (Zivilprozessordnung). Administrative courts may also be competent to hear specific matters such as certain concessions which are classified as public law contracts.
  • Review by the competent supervisory authority (Aufsichtsbehörde), including legal, functional and disciplinary supervision (see § 155 GWB).

8. Are there any filing fees for an appeal?
  • Authority of first instance (Vergabekammer): procedural fee can be between EUR 2,500 and EUR 50,000; in exceptional cases, e.g. significant economic interest, up to EUR 100,000 (§ 182 (2) GWB). In general, the assessment of fees depends on the administrative efforts and economic interest. Every party has to bear this procedural fee as far as it loses the case.
  • Authority of second instance (Vergabesenate) and ordinary civil courts: fees depend on the value in dispute (Streitwert); the general German law on court fees (Gerichtskostengesetz) is applicable.
  • Besides the procedural fees, the unsuccessful party has to bear the legal defence costs incurred by the successful party. The legal defence costs also depend on the value in dispute (Streitwert); the general German law on lawyers’ fees (Rechtsanwaltsvergütungsgesetz) is applicable.

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
  • Above EU threshold:
    • As soon as the contracting authority receives written information from the review body about the initiation of a review procedure, the possibility to award the contract is suspended until the completion of the review procedures (§ 169 (1) GWB).
    • On application by the tenderer, further interim measures can be ordered by the review body if other rights of the tenderer have been jeopardized during the award procedure (§ 169 (3) GWB).
  • Below EU threshold:
    On a state level, only the Procurement Acts of Thuringia, Saxony and Saxony-Anhalt contain regulations providing for a suspensive effect. The contracting authority may conclude the contract only if the review body does not – upon application of the tenderer – object to the award procedure within a certain time limit (see § 19 (2) Procurement Act Thuringia, § 8 (2) Procurement Act Saxony, § 19 (2) Procurement Act Saxony-Anhalt).

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EG
  • Upon application, a contract with a value above the EU thresholds can be declared ineffective ab initio by the review body if the contracting authority has violated § 134 GWB (standstill period) or has awarded a public contract directly to a company without inviting other companies to participate in the award procedure and without this being expressly permissible according to the law (§ 135 (1) GWB). The application must be filed within 30 calendar days after receipt of knowledge of the infringement or 30 calendar days after publication of the notice of the award in the Official Journal of the European Union or at the latest within six months after the conclusion of the contract (§ 135 (2) GWB).
  • There are no alternative penalties according to Dir 66/2007/EC under German Public Procurement Law.
  • Under certain conditions, a tenderer may be entitled to claim compensation from the contracting authority according to § 181 GWB or general rules of German civil law.

Hungary
By Ferenc Mátrai and Veronika Kovács, CMS Budapest
Amended as of April 2016
1. Where can one find public procurement notifications for Hungary?
  • Public Procurement Bulletin, the Official Journal of the Public Procurement Authority; available online under www.kozbeszerzes.hu – This also contains the notifications sent to TED as a matter of information.
  • A contracting authority may publish its notification in any way it prefers (e.g. on its webpage) provided that it does not contain data differing from the version sent for publication to TED or the Public Procurement Bulletin.

2. What are the relevant thresholds for the applicability of Hungarian law?
  • The relevant thresholds for public procurements by contracting authorities other than public service providers:
    • For supply contracts: HUF 8m (approx. EUR 25,800);
    • For services contracts: HUF 8m (approx. EUR 25,800);
    • For public works contracts: HUF 15m (approx. EUR 48,400)
    • For works concession: HUF 100m (approx. EUR 322,600);
    • For services concession: HUF 25m (approx. EUR 80,650).
  • The relevant thresholds for public procurements by public service providers as contracting authorities:
    • For supply contracts: HUF 50m (approx. EUR 161,300);
    • For services contracts: HUF 50m (approx. EUR 161,300);
    • For public works contracts: HUF 100m (approx. EUR 322,600);
    • For works concession: HUF 200m (approx. EUR 645,160);
    • For services concession: HUF 100m (approx. EUR 322,600).

3. Under which circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
  • The contracting authority is free to choose among the open and the restricted procedure – Section 49(1) of Act CXLIII of 2015 on public procurements (“PPA”). These are the referred to as “general procedures” in which cases no special circumstances are required.
  • There are two types of negotiated procedures. Negotiated procedure may be launched (i) with or (ii) in exceptional cases without prior publication of a contract notice. The applicability of these procedures may depend on the existence of certain special circumstances set out in the PPA as follows:
  • A negotiated procedure with prior publication of a contract notice and competitive dialogue can be carried out (Section 85(2) of the PPA):
    • if the needs of the contracting authority cannot be met without adaptation of solutions which are readily available on the market;
    • if the object of the procurement include design or innovative solutions;
    • the best offer cannot be identified without prior negotiations because of specific circumstances related to the nature, the complexity or the legal and financial make-up or because of the risks attaching to them;
    • 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 reference within the meaning of specific other legislation; or
    • where a previous open or restricted procedure was declared unsuccessful because only unacceptable tenders had been submitted, or the procedure was declared unsuccessful as all tenders submitted exceeded the funds at the contracting authority’s disposal.
  • A negotiated procedure without prior publication of a contract notice can be carried out (Section 98(2)-(5) of the PPA):
    • if an open or restricted procedure or has failed and the conditions of the procurement are substantially the same;
    • if open or restricted procedure has been unsuccessful as no tenders or requests for participation have been submitted or only unsuitable bids were submitted, provided that the conditions of the procurement did not change substantially;
    • if technical or artistic reasons or exclusive rights apply;
    • if extreme urgency applies and the time limit for other procedures cannot be adhered to;
    • for public works and public service contracts if new works or services are ordered that are similar or the same as the ones already ordered from the winner of a previous public procurement, provided that the new works or services are in harmony with the previous base project awarded in an open or restricted procedure;
    • in case of supply contract:
      • goods are procured for R&D, experimental or educational purposes;
      • it is technically not feasible to change the person of the supplier of previously procured goods;
      • if the goods are listed and procured form the stock market;
      • if the goods are procured in the course of liquidation, winding-up judicial enforcement procedure;
    • in case of services contract:
      • if the procurement takes place after the award of a design contract and the contract must be concluded with its winner or one of its price winners.
    • Negotiated procedures without prior publication of contract notice can be also carried out below the EU public procurement thresholds (Section 114(9) of the PPA) if it is possible to procure supplies taking advantage of a particularly advantageous opportunity available to all interested persons for a very short period of time at a price considerably lower than the normal market prices, and where such an opportunity would not otherwise be available in the procedure.

4. Which decisions of a contracting authority can be appealed?
  • All decisions of a contracting authority (e.g. the call for tender, the decision of revocation, the contract award decision, etc.) can be appealed, it is not specific to a certain type of procedure. However there is a distinction with respect to time limits between (i) decisions on the conclusion of the award procedure and (ii) all other decisions of the contracting authority (see below).

5. What time limits exist for appeals? Are further appeals precluded after these limits?
  • The appeal shall be filed within 15 days of the petitioner become aware of the infringing decision of the contracting authority, or within ten days for unlawful decisions adopted after the conclusion of the award procedure (subjective time limit) (Section 148(3) of the PPA).
  • After 90 days, following the date of the infringement, no petition may be lodged (objective time limit). Further appeals are precluded after the expiration of the 90 day period (Section 148(3) of the PPA).
  • If in procedures under the EU threshold, the contracting authority decides upon the application of own procedural rules as prescribed by Section 115 of the PPA, the appeal regarding the decisions on the conclusion of the award procedure may be filed within five days (Section 148(3) of the PPA).

6. How long is the standstill period?
  • Generally, the standstill period is ten days (in case of application of own procedural rules in compliance with Section 115, five days) from the date of dispatch of the written report on the evaluation process. (Section 131(6) of the PPA)
  • The contract may be concluded before the expiration of the standstill period in certain cases listed in Section 131(8) of the PPA.

7. Which review bodies exist?
  • In case of breach of public procurement rules:
    • The Public Procurement Dispute Board of Hungary shall be administrative review body in Hungarian: Közbeszerzési Döntőbizottság;
    • The judicial review body is the Administrative and Labour Court.
  • In case of other contractual breaches: ordinary courts of Hungary.

8. Are there any filing fees for an appeal?
  • Yes. The basis of the filing fee is calculated as follows:
    • in case of procurements above the EU threshold, the basis of the filing fee amounts to 0.5% of the estimated value of the procurement, but not less than HUF 200,000 (approx. EUR 650) and shall not more than HUF 25m (approx. EUR 80,650);
    • in case of procurements below the EU threshold, the basis of the filing fee is 1% of the estimated value of the procurement, but not less than 200,000 (approx. EUR 650) and not more than HUF 6m (approx. EUR 19,400).
  • The actual filing fee is subject to the number of requests contained within the appeal. In case of 1-3 requests, the actual fee is equivalent to the basis of the filing fee (100%). The fee increases gradually until 16 requests. In case of 16 or more requests in the appeal, the actual fee amounts to 200% of the basis of the filing fee.
  • It is possible to reimburse the filing fee (if the decision is favourable to the applicant), or part of it (in the ration of winning) but HUF 200,000 (approx. EUR 650) remains with the Public Procurement Dispute Board and shall be borne in compliance with the general rules of administrative proceedings.

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
  • A review application itself does not have a suspensive effect.
  • The Public Procurement Dispute Board may impose interim measures upon request or ex officio and it may order the suspension of the public procurement procedure (Section 156(1)-(2) of the PPA). In case of public interest of extreme importance, the Public Procurement Dispute Board may authorise the conclusion of the contract despite the ongoing review procedure.

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC
  • In principle, there are no such rules in place in Hungary relating to an invalidity as set out specifically in Dir 66/2007/EC. Only the court may declare a public procurement contract as null and void in a separate procedure. The precondition for that is the completion of a review procedure before the Public Procurement Dispute Board.
  • As part of this procedure, the Public Procurement Dispute Board may impose a fine for certain unlawful acts of the contracting authority or the economic operator (Section 165(3)-(7) of the PPA).

Italy
As a preliminary remark, please note that the Public Procurement system in Italy is regulated by:
  • The Code of Public Contracts (Legislative decree n. 163/2006) – hereinafter the “Code”;
  • The Code of the Administrative process (Legislative decree n. 104/2010) – hereinafter “the Administrative Process Code” or “CPA”.

1. Where can one find public procurement notifications for Italy?
  • TED (Tenders electronic daily), the online version of the “Supplement to the Official journal of the European Union);
  • SIMAP (The European system of information on public procurement);
  • The Official Journal of the European Union;
  • The Official Journal of the Italian Republic (supplement for public contracts);
  • The Official Journals of the Italian Regions; (supplement for public contracts);
  • The Official website of the Ministry of Transports;
  • The Official website of the “Observatory” of the Authority supervising public contracts (AVCP);
  • Different media (such as national and local newspapers, and internet portals);
  • Website of the Contracting Authority;
  • Bulletin Board of Municipalities (for call for tenders valued below EUR 500,000).

2. What are the relevant thresholds for the applicability of Italian law?
The Code identifies the following thresholds for the applicability of the ITALY Public Procurement Law:
  • Ordinary sectors
    • Supply contracts – service contracts
      • EUR 134,000 for public supply and service contracts awarded by Central government Authorities (i.e. Ministries, Consip; Presidency of the Council of Ministries);
      • EUR 207,000
        • for public supply and service contracts awarded by a Contracting Authority other than Central government Authorities;
        • for public supply and service contracts awarded by any Contracting Authority for services of research and development or telecommunications services;
    • Work contracts and works concessions
      • c. EUR 5,186,000.
  • Special sectors ( water resources, energy, transport and postal services sectors)
    • Supply contracts – service contracts
      EUR 414,000
    • Work contracts
      EUR 5,186,000
  • Public contracts valued below the abovementioned European thresholds are awarded according to the rules set forth by articles 121-125 of the Code.
  • Public contracts of works, services and supply valued below EUR 40 000 are freely awarded by the Italian Contracting Authorities.

3. Under which circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
The Contracting Authorities are free to choose between the open and the restricted procedure (see art 54-55 of the Code).
The Contracting Authorities may apply a negotiated procedure under certain circumstances expressly provided for by articles 56 and 57 of the Code.
  • Negotiated procedure with prior publication of a contract notice (art. 56 of the Code):
    • in the event of irregular tenders or the submission of tenders which are unacceptable under national provisions, in response to an open or restricted procedure or a competitive dialogue insofar as the original terms of the contract are not substantially altered.
      Contracting Authorities need not publish a contract notice where they include in the negotiated procedure all of, and only, the tenderers which satisfy the criteria of Articles 34 to 45 of the Code and which, during the prior procedure have submitted tenders in accordance with the formal requirements of the tendering procedure;
    • in respect of public works contracts, for works which are performed solely for purposes of research, testing or development and not with the aim of ensuring profitability or recovering research and development costs.

  • Negotiated procedure without prior publication of a contract notice (art. 57 of the Code)
    • for public works contracts, public supply contracts and public service contracts:
      • when no tenders or no suitable tenders or no applications have been submitted in response to an open procedure or a restricted procedure, provided that the initial conditions of contract are not substantially altered and on condition that a report is sent to the Commission if it so requests;
      • when, for technical or artistic reasons, or for reasons connected with the protection of exclusive rights, the contract may be awarded only to a particular economic operator;
      • insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the Contracting Authorities, the time limit for the open, restricted or negotiated procedures with publication of a contract notice cannot be complied with. The circumstances invoked to justify extreme urgency must not in any event be attributable to the Contracting Authorities;
    • in addition for public supply contracts:
      • when the products involved are manufactured purely for the purpose of research, experimentation, study or development; this provision does not extend to quantity production to establish commercial viability or to recover research and development costs;
      • for additional deliveries by the original supplier which are intended either as a partial replacement of normal supplies or installations or as the extension of existing supplies or installations where a change of supplier would oblige the Contracting Authority to acquire material having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; the length of such contracts as well as that of recurrent contracts may not, as a general rule, exceed three years;
      • for supplies quoted and purchased on a commodity market;
      • for the purchase of supplies on particularly advantageous terms, from either a supplier which is definitively winding up its business activities, or the receivers or liquidators of a bankruptcy, an arrangement with creditors, or an extraordinary administration of big enterprises or compulsory administrative winding-up;
    • in addition for public service contracts:
      • when the contract concerned follows a design contest and must, under the applicable rules, be awarded to the successful candidate or to one of the successful candidates, in the latter case, all successful candidates must be invited to participate in the negotiations;
    • in addition for public works contracts and public service contracts:
      • for additional works or services not included in the project initially considered or in the original contract but which have, through unforeseen circumstances, become necessary for the performance of the works or services described therein, on condition that the award is made to the economic operator performing such works or services:
        • when such additional works or services cannot be technically or economically separated from the original contract without serious inconvenience to the Contracting Authorities, or when such works or services, although separable from the performance of the original contract, are strictly necessary for its completion.
        • the aggregate value of contracts awarded for additional works or services may not exceed 50 % of the amount of the original contract;
      • for new services consisting in the repetition of similar services already entrusted to the economic operator to whom the same Contracting Authorities awarded an original contract, provided that such services are in conformity with a basic project for which the original contract was awarded according to an open or restricted procedure.

        This procedure may be used only during the three years following the conclusion of the original contract and overall estimated value of the services has to be taken into consideration for the whole value of the contract with respect to the European thresholds.

        If possible, the Contracting Authority selects some economic operators for consultation purposes. Thereafter, if feasible, it will make its selection of at least three economic operators, inviting them to submit an offer.
  • Negotiated procedure in the special sectors (water, energy, transport and postal services sectors)
    • In the abovementioned sectors the negotiated procedure with prior contract notice is always possible.

      Article 221 of the Code provides for the cases where a negotiated procedure without a prior contract notice is possible.
  • Competitive dialogue (art. 58 of the Code)
    • In case of particularly complex contracts, where Contracting Authorities consider that the use of the open or restricted procedure will not allow the award of the contract, the Contracting Authorities may make use of the competitive dialogue.
      A public contract is regarded as a “particularly complex contract” when the Contracting Authority
      • is objectively unable to define on its own the technical ways to satisfy its needs or its purposes;
      • is objectively unable to set up the legal or financial framework of a project.
      A public contract shall be awarded on the sole basis of the award criterion for the most economically advantageous tender.

4. Which decisions of a contracting authority can be appealed?
An appeal is possible against:
  • unlawful contract award decisions;
  • discriminatory technical, economic or financial specifications in the call for tender and/or invitation to tender if such specification are able to exclude a prospective tenderer from taking part in the tender;
  • unlawful disqualification from the call for tender procedure.

5. What time limits exist for appeals? Are further appeals precluded after these limits?
The time limit for appeal is 30 days respectively starting from:
  • the notice from the Contracting Authority of the contract award decision;
  • the publication of the call for tender or from the receipt of the invitation letter;
  • the notice of disqualification from the call for tender procedure.


Should the Contracting Authority fail to comply with publication rules on call for tender or to notify the award decision, the time limit for appeal is six months starting from the day after the conclusion of the contract.

Further appeals are precluded after the expiry of the abovementioned time limits.
6. How long is the standstill period?
As a general rule, the standstill period is 35 days starting from the announcement of the contract award decision by the Contracting Authority.

If an appeal before the competent Administrative Court with a request of interim measures is filed by the unsuccessful tenderer against the award decision, the contract cannot be signed for a further 20-day period.
7. Which review bodies exist?
Concerning the appeals against the above mentioned decisions the review bodies are:
  • the Regional Administrative Courts (TAR), in first instance;
  • the Council of State for the appeal against the decisions rendered by the Regional Administrative Courts.

The Administrative Courts can grant “interim measures” and compensation for damages arising from unlawful decision of the Contracting Authority.
Before appealing the judicial bodies, the unsuccessful tenderer has the faculty to inform the Contracting entity about the proposition of the appeal in order to obtain a self-remedy decision by the same Contracting Authority (see art. 243 bis of the Code).

With regard to claims referred to the execution of the procurement contract, the competent bodies are:
  • the Civil Court, in first instance;
  • the “Court of Appeal” in second instance;
  • the “Court of Cassation” in third instance.

8. Are there any filing fees for an appeal?
Standard court fees (so called “Contributo unificato”) are due whenever an appeal is lodged, the amount of which depends on the value of the claim, ranging between a minimum of EUR 2,000 to a maximum of EUR 6,000.
The value of such fee is increased in case of appeals before the superior courts (Council of State, Court of Appeal and Court of Cassation).
9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
No, the appeal does not have an automatic suspensive effect, but it is necessary to expressly request the Administrative Court to grant an interim misure (i.e. suspension of the awarding decision, suspension of decision of disqualification from the call for tender procedure, suspension of the first instance Administrative Court decision). See art. 55 of CPA.
10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC
The Administrative Judge may rule on the ineffectiveness of a contract if:
  • the contract has been awarded without prior publication of the contract notice in the Official Journal of the European Union on in the Official Journal of the Italian Republic (supplement for public contracts) if the publication of a contract notice is provided for by the Code;
  • if the contract has been awarded by means of a negotiated procedure without prior contract notice when the circumstances set forth by the Code did not occur (besides the cases permitted);
  • in case of derogation from the standstill period if this circumstance has jeopardizes the possibility to appeal of the unsuccessful tenderer.


The Administrative Judge, having assessed all relevant aspects and, in particular, the public interest to the maintenance of the contract itself, shall decide whether the contract should be considered ineffective or whether alternative penalties should be imposed. (see art. 121 CPA).

Alternative penalties set forth by the Administrative Judges must be effective, proportionate and dissuasive.

They shall be alternatively or jointly:
  • the imposition of fines on the Contracting Authority ranging between a minimum of 0,5% to a maximum of 5% of contract value (i.e. awarding contract price);
  • the shortening of the duration of the contract, if possible, ranging between a minimum of 10% to a maximum of 50% of the remaining duration of the contract itself (see art. 123 CPA).

Macedonia
By Marija Filipovska, CMS Belgrade
1. Where can one find public procurement notifications for Macedonia?

2. What are the relevant thresholds for the applicability of Macedonian law?
The Public Procurement Act (Official Gazette of the Republic of Macedonia nos. 136/2007, 130/2008, 97/2010, 53/2011, 185/2011, 15/2013, 148/2013, 160/2013, 28/2014, 43/2014 and 130/2014) (hereinafter the “PPA”) shall not apply to procurements that exceed the total value of EUR 500 per month (without value added tax) (art. 11 of the PPA).
3. Under which circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
  • As a rule, the contracting authority is free to choose among the open and the restricted procedure. As an exception from such rule, only in certain cases stipulated by the PPA, the contracting authority may award a public procurement contract by applying other procedures (art. 21 of the PPA).
  • Negotiated procedure can be carried out with or without the announcement of a public call for submission of offers (art. 89-99 of the PPA).
    • Negotiated procedure with the announcement of a public call may be used:
      • in exceptional cases where, due to the nature of goods or services or due to associated risks it is not possible to predict the value of the public procurement contract;
      • in case of procurement of services, when the nature of such services renders impossibility to specify the technical conditions and thus, it is impossible to use the open or the restricted procedure; and
      • for works conducted solely for the purpose of research, testing or technological development, and for obtaining benefit and recovering of the costs incurred during research and development.
      The State Commission is obliged to provide a separate report on the conducted negotiated procedure with the announcement of a public call. In such report, the State Commission is obliged to provide a detailed explanation of the reasons for conducting such procedure, as well as the manner of conducting the procedure.
    • Negotiated procedure without the announcement of a public call may be used:
      • for procurement of goods, services and works:
        • when no offers were submitted in two previously conducted open procedures or simplified competitive procedures, that is, no request for participation in the first phase is submitted in two previously conducted restricted procedures, provided that the initial requirements of the tender documentation have not been altered;
        • when due to technical or artistic reasons, i.e. for reasons related to protection of exclusive rights (patents and alike), the contract can be carried out solely by a specific economic operator; and
        • for reasons of extreme urgency caused by events unforeseeable for the contracting authority, nor attributable to it as an omission, as a result of which the time period for publication of the open procedure, restricted procedure, simplified competitive procedure, negotiated procedure with announcement of a public call cannot be applied;
      • for procurement of goods, as follows:
        • goods manufactured solely for the purpose of research, experimentation, study or development (but not for goods in mass production that may provide recovery of the expenses for research and development);
        • in cases when the contracting authority has to procure additional deliveries from the original contractor for the purpose of partial replacement of the common goods, installations or extension of the existing goods or installations, wherefore the change of the tenderer would oblige the contracting authority to purchase material with different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance. The length of the additional procurements may not exceed three years as of the day of concluding the basic contract, and their value may not exceed 30% of the amount of the basic contract, and
        • goods which are procured under particularly favorable terms, from a tenderer which winds-up its business activities (liquidation or bankruptcy), from a bankruptcy administrator or liquidator upon a prior agreement with the creditors;
      • for procurement of additional works or services not included in the basic contract, but are necessary due to unanticipated circumstances, provided that the contract is awarded to the contractor of the works or the service provider referred to in the basic contract, when:
        • such additional works or services cannot be technically or economically separated from the basic contract without major inconvenience for the contracting body, or
        • such works or services, although separable from the implementation of the basic contract, are necessary for its completion.
        The total value of the additional works, unpredicted works, excess of works and shortage of works or of the additional services referred herein must not exceed 30% of the value of the basic contract.
  • Competitive dialogue may be applied in the following cases:
    • where the subject of procurement is particularly complex, and
    • where the implementation of an open or restricted procedure would not allow the public procurement contract to be awarded (art. 77 of PPA).


4. Which decisions of a contracting authority can be appealed?
Although it is not clearly stated in the PPA, it appears that the appeal is allowed solely in the cases listed in art. 216 para 2 of the PPA, within a time period of eight days, (i.e. three days for the simplified competitive procedure) as of the day of:
  • receipt of the minutes of the conducted technical dialogue, related to actions or omission of actions related to the conducting of a technical dialogue,
  • publication of the notice for awarding the public procurement contract, regarding the data, actions or omissions to undertake actions referred to in the contract notice;
  • opening of tenders, regarding the actions or omissions to undertake actions related to the tender documentation, i.e. the tender opening procedure;
  • expiry of the time period for adoption of a decision for selection or annulment of the procedure in accordance with Article 162 paragraph (2) of the PPA in respect to the omission for adoption of decision for selection or annulment of the procedure in the corresponding deadline;
  • receipt of the decision for an individual right in the procedure for awarding a public procurement contract regarding the determination of the competence of the requests for participation or the evaluation of tenders and the decision; or
  • acknowledgment of the illegal conduct of the procedure for awarding a public procurement contract, within a time period of one year at the latest as of the day of completing the conducted procedure.

An appeal shall be filed within a period of three days as of the receipt of the notification for concluded contract pursuant to a framework agreement.
When the procedure ends with an electronic auction, the time period for filing an appeal in regard to determining the competence of the tenderers and the evaluation of the initial tenders shall be counted as of the day of receipt of the decision of an individual right in the procedure for awarding a public procurement contracts following the competition of the electronic auction.
In the course of establishing a qualification system, the appeal related to the actions or omissions of actions related to the tender documentation shall be filed within a period of eight days as of the day of receipt of the decision on inclusion or rejection to include a tenderer in the qualification system.
5. What time limits exist for appeals? Are further appeals precluded after these limits?
For the time limits for appeals, please refer to our answer to question 4 above.

If the economic operator has failed to file an appeal in accordance with these deadlines, he shall not have the right to file an appeal on the same legal basis in the latter stage of the procedure (art. 216 para 5).
6. How long is the standstill period?
As a general rule, the contracting authority must not sign the public procurement contract and proceed with its implementation within a time period of 12 days, and five days in case of a simplified competitive procedure, as of the day of receipt of the decision for an individual right in the procedure for awarding the public procurement contract. There are, however, exceptions to this rule (art. 208 of the PPA).
7. Which review bodies exist?
The State Commission (“Државна комисија”) decides on the appeal filed against a decision of the contracting authority regarding the award of a contract (art. 200 of the PPA).
8. Are there any filing fees for an appeal?
Yes, there are two types of fees: (i) an administrative fee in the amount of EUR 5 and (ii) a fee for conducting the procedure which depends on the value of the offer, as follows:
  • If the offer amounts up to EUR 20,000, the fee is EUR 100;
  • If the offer amounts from EUR 20,000 to EUR 100,000, the fee is EUR 200;
  • If the offer amounts from EUR 100,000 to EUR 200,000, the fee is EUR 300; and
  • If the offer exceeds EUR 200,000, the fee is EUR 400.

In case there is no offer, the amount of the fee for conducting the procedure shall be calculated on the basis of the estimated value of the public procurement contract, whereby the State Commission shall inform the appellant about the amount of the fee and the time period in which the appellant shall have to submit proof of the payment (art. 229 of the PPA).
9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
As a rule, the filed appeal suspends the signing of the public procurement contract and its implementation until the decision of the State Commission becomes final. As an exception this rule, upon a request of the contracting authority, the State Commission can approve the continuation of the procedure for awarding the public procurement (art. 217 of the PPA).

The public procurement contract signed contrary to this article shall be considered as null and void.
10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC
Republic of Macedonia is not yet an EU member state. Therefore, none of the EU directives apply directly to the citizens and entities in the Republic of Macedonia. However, it appears that the PPA was harmonized in accordance with the EU directive 66/2007/EC.
The Netherlands
By Petra Heemskerk, CMS Utrecht
1. Where can one find public procurement notifications for the Netherlands?
  • Online service: www.TenderNed.nl (mandatory, article 4.13 Procurement Act (Aanbestedingswet 2012));
  • Online service: www.aanbestedingskalender.nl (optional).

2. What are the relevant thresholds for the applicability of the Procurement Act (Aanbestedingswet 2012) for the period 2014-2015?
Awarded by/contracts concerningSupply contractsServices contractsWorks contracts
Contracting authority other than central government authorities (decentralized public authorities) (Directive 2004/18/EG)207,000207,0005,186,000
Central government authorities134,000134,0005,186,000
Research and development contracts, telecommunication services and services covered by Annex II B, Directive 2004/18/EG207,000207,000
Competition in general use (Art. 67 Directive 2004/18/EG), decentralized public authorities207,000207,000207,000
Competition in general use (Art. 67 Directive 2004/18/EG), central government authorities134,000134,000134,000
Works contracts which are subsidised directly by contracting authorities by more than 50% (Art. 8a Directive 2004/18/EG) 5,186,000
Service contracts which are subsidised directly by contracting authorities by more than 50% and are connected with works contracts (article 8b, Directive 2004/18/EG) 207,000
Concession contracts in the public works area (article 56, Directive 2004/18/EG) 5,186,000
Supply contracts and service contracts in the Utility Services Sector (water, energy, transport and postal services) (Directive 2004/17/EG)414,000414,000
Works contracts in the Utility Services Sector (water, energy, transport and postal services) (Directive 2004/17/EG) 5,186,000
Supply contracts and service contracts in the field of defence (Directive 2009/81/EG)414,000414,000
Works contracts in the field of defence (Directive 2009/81/EG) 5,186,000

All amounts mentioned above are stated in EUR.

It should be noted, however, that even below these thresholds some tendering obligations are still applicable.

The Proportionality Guide (gids proportionaliteit) (which the government is, in principal, obliged to obey) makes clear that a service assignment with a value of more than EUR 20 000 should be awarded by the central government following a competition in a multiple private private tender procedure (meervoudig onderhands) and assignments with a value of EUR 100 000 or more after a national-wide public tender procedure (national openbaar). For other tender agencies the thresholds are between EUR 70 000 and EUR 175 000 respectively. Furthermore, an interest is expressed by other Member States, some kind of tender obligation may exist.

Pursuant to Art. 2.24 of the Procurement Act (Aanbestedingswet 2012), some contracts are excluded from the Procurement Act (Aanbestedingswet 2012). For example, services for arbitration and services related to research.

3. Under what circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
Pursuant to Art. 2.25 of the Procurement Act (Aanbestedingswet 2012), the contracting authority is free to choose among the open and the restricted procedure.
  • A negotiated procedure (with prior notification) can be carried out (Art. 2.30, 2.31 of the Procurement Act (Aanbestedingswet 2012)):
    • if no tenders or no suitable tenders or no applications have been submitted in response to an open or restricted procedure.
    • if the performance does not permit prior overall pricing due to its nature or the risks attached thereto.
    • in case of a service contract (Annex II A, category 6, Directive 2004/18/EG) or in the case of intellectual service contracts, for which, due to the nature of the services it is not possible to determine the specifications needed to organize an open or restricted procedure.
    • in case of a works contract which is being performed for the purpose of research, tests or development, and has not been concluded for the purpose of securing a profit or for recovering research and development costs.
  • A negotiated procedure (without prior notification) can be carried out (article 2.32 – 2.36 of the Procurement act (Aanbestedingswet 2012)):
    • if no tenders or no suitable tenders or no applications have been submitted in response to an open or restricted procedure and the contract is not substantially modified and a report of the original tender procedure has to be sent to the European Commission at the latter’s behest.
    • if the performance can only be provided by a particular contractor for technical or artistic reasons, or due to the protection of exclusive rights.
    • if urgent and compelling reasons (which were not foreseeable and not caused by the contracting authority) do not allow the implementation of an open or restricted procedure with prior publication.
  • Conditions for a competitive dialogue (paragraph 2.2.2.1 of the Procurement Act (Aanbestedingswet 2012), Art. 2.28 and 2.29 of the Procurement Act (Aanbestedingswet 2012)): in case of complex contracts and if the open/restricted procedure cannot be used according to the contracting authority.

4. Which decisions of a contracting authority can be appealed?
  • All decisions concerning a procurement procedure that are conflicting with the Procurement Act (Aanbestedingswet 2012). For example:
    • the decision not to organize a public procurement procedure (Art. 4.15 of the Procurement Act (Aanbestedingswet 2012));
    • the decision on a specific tender procedure (open procedure/restricted procedure/negotiated procedure etc.) to award a public contract (Art. 1.4 of the Procurement Act (Aanbestedingswet 2012));
    • the choice of the contracting authority allowing specific undertakings to participate in a restricted procedure (Art. 1.4 of the Procurement Act (Aanbestedingswet 2012));
    • disproportionate provisions in the tender documents (Art. 1.10, 1.13, 1.16 of the Procurement Act (Aanbestedingswet 2012));
    • the contract award decision (Art. 2.127 of the Procurement Act (Aanbestedingswet 2012));
    • the retirement of a tender (Art. 2.132 of the Procurement Act (Aanbestedingswet 2012)).

5. What time limits exist for appeals? Are further appeals precluded after the expiry of these limits?
  • the decision not to apply a public procurement procedure:
    • six months after the signing of the agreement, if the contract is awarded without a prior publication notice published in the Official Journal of the European Union (Art. 4.15 (2b) of the Procurement Act (Aanbestedingswet 2012));
    • 30 days after the signing of the agreement, if the contract is awarded with a prior publication notice published by the Commission (Art. 4.15 (2a) of the Procurement Act (Aanbestedingswet 2012));
    • the contract award decision: 20 days after the contract award decision (Art. 2.127 (3) of the Procurement Act (Aanbestedingswet 2012));
    • the time limits for other decisions like the decision to apply a specific tender procedure or disproportionate provisions are dependent on the provisions in the tender documents. However, economic operators must appeal against such decisions as soon as possible. If they wait until the contract award decision, there is a fair chance that this will lead to a preclusion of their appeal.

6. How long is the standstill period?
  • the standstill period starts with the announcement of the contract award decision and expires after 20 days (Art. 2.127 (3) of the Procurement Act (Aanbestedingswet 2012));
  • the standstill period does not apply to (national, restricted) procedures in which a prior publication notice is not mandatory (Art. 2.127 (4a) of the Procurement Act (Aanbestedingswet 2012)).

7. Which review bodies exist?
  • the district court;
  • CBB (“College van Beroep voor het bedrijfsleven”) (in case of public transport contracts);
  • the Complaints Board of the contracting authority itself (not binding);
  • the Commission of Procurement experts („de Commissie van Aanbestedingsexperts”) (not binding).

8. Are there any filing fees for an appeal?
  • the filing fees in preliminary relief proceedings amount to EUR 608 (Wet griffierechten burgerlijke zaken, Art. 3).
  • there is a possibility that the winning applicant may be reimbursed the (entire) fee.

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
  • An application for an interim injunction at the district court is necessary and has a suspensive effect. The party which does not agree with the contract award decision needs to bring preliminary relief proceedings at the district court during the standstill period, subject to a limitations of actions. It should be noted, however, that if a party does not agree with the court’s judgment at first instance and decides to appeal against such a decision, this appeal shall not have a suspensive effect.

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC
  • Annulment of the contract (Art. 4.15 of the Procurement Act (Aanbestedingswet 2012));
  • Shortening (by the national court) of the duration of the contract (Art. 4.19 of the Procurement Act (Aanbestedingswet 2012));
  • Administrative penalties imposed by the ACM (“Autoriteit Consument en Markt”), with a maximum limit of 15% of the contract value (Art. 4.21 of the Procurement Act ( Aanbestedingswet 2012)).

Poland
By Malgorzata Urbanska and Jacek Liput, CMS Warsaw
1. Where can one find public procurement notifications for Poland?
  • Information about public tenders in Poland may be found on the online version of the Supplement to the Official Journal of the European Union – TED (Tenders Electronic Daily) under www.ted.europa.eu. The website publishes notices of the initiation of tender proceedings for public contracts with a value equal to or above the applicable EU thresholds.
  • Notices initiating tender proceedings for public contracts with a value below the applicable EU thresholds are published in the Public Procurement Bulletin (Biuletyn Zamówień Publicznych). The website is only available in Polish.
  • A contracting authority must publish a notice of the initiation of tender proceedings on a website and in a publicly accessible place at its registered office. Contracting authorities may also place notices in Polish dailies or periodical newspapers. There are also various other commercial Polish-language websites where such notices may be published.

2. What are the relevant thresholds for the applicability of the Public Procurement Law (PPL)
Thresholds for the application of the PPL:
Application of the PPL rules
(PPL is not applicable below these thresholds)
Supply contractsService contractsConstruction works contracts
Basic threshold applicable to public contractsEUR 30,000*EUR 30,000*EUR 30,000*
Utility contracts
(water, energy, transport, postal services)
EUR 414,000 EUR 414,000 EUR 5,186,000

Thresholds for contracts which require notification to the Publications Office of the EU:
Contracts awardedSupply contractsService contractsWorks contracts
by the public finance sector
(with certain exceptions)
EUR 134,000 EUR 134,000 EUR 5,186,000
by entities other than those in the public finance sectorEUR 207,000 EUR 207,000 EUR 5,186,000
In the utilities sector
(water, energy, transport, postal services)
EUR 414,000 EUR 414,000 EUR 5,186,000
in the field of defence and securityEUR 414,000 EUR 414,000 EUR 5,186,000

3. Under which circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
  • The contracting authorities are free to choose among the open and restricted procedure.
  • The contracting authorities may award contracts through the negotiated procedure (with prior public announcement) if at least one of the circumstances listed below has occurred:
    • during the previous award procedure under open or restricted tendering or competitive dialogue all tenders have been rejected and the original conditions of the contract have not been substantially amended;
    • in some exceptional circumstances, where the nature of the supplies, services or works or the risks entailed make prior pricing impossible;
    • the specific characteristics of the services to be procured cannot be ascertained in advance in order to select the best tender under the open or restricted procedure;
    • the subject-matter of the contract is construction works carried out only for the purpose of research, experiment or development, and not to generate profits or to recover any incurred research and development costs;
    • the contract value is below the EU thresholds.
  • The contracting authorities may award contracts through the negotiated procedure with only one participant (single source procurement) if, in particular, (at least one of the following must be met):
    • supplies, services or construction works may be provided by only one undertaking: (a) for technical reasons of an objective character; or (b) for reasons connected with the protection of exclusive rights resulting from the application of separate legal provisions; or (c) in the case of contracts in the field of creative and artistic activities.
    • due to an exceptional situation that is not brought about by events caused by the awarding entity, there is a need for a prompt execution of the contract and the time periods provided for other procedures cannot be applied;
    • in the case of an aware of so called supplementary orders (precisely defined in the PPL).
  • The contracting authority may award a contract by competitive dialogue if the following conditions have been cumulatively met:
    • it is not possible to award contracts by applying the open or restricted procedure due to the complex nature of the contract, and in particular when it is not possible to describe the subject of the contract in accordance with the provisions of the PPL or to objectively define the legal or financial conditions of contract performance,
    • the price is not the only criterion for the selection of the best tender.
  • Slightly different rules apply to procurement procedures in the utilities sector and in the field of defense and security.

4. Which decisions of a contracting authority can be appealed?
  • An appeal can be brought against any action of the contracting authority that does not comply with the PPL, which has been performed in the course of the contract award procedure, or against a failure to act if the contracting authority is bound to perform certain actions.
  • If the contract value is below the EU thresholds, the appeal is only admissible against:
    • choice of the negotiated procedure, single-source procurement and request for quotation procurement mode;
    • description of the method used for the evaluation of the fulfillment of conditions for participation in the tender;
    • exclusion of the appellant from the tender;
    • rejection of the appellant’s tender.

5. What time limits exist for appeals? Are further appeals precluded after the expiry of these limits?
  • If the contract value is equal to or above the EU thresholds, the time limit for lodging an appeal is usually ten days with effect from the day following the date on which the contracting authority’s decision was sent by fax or e-mail, 15 days respectively if sent by post.
  • If the contract value is below the EU thresholds, the time limit for lodging an appeal is usually five days with effect from the day following the date on which the contracting authority’s decision was sent by fax or e-mail, ten days respectively if sent by post.
  • An appeal against the contract notice, and if the procedure is conducted using an open procedure also against the specification of essential terms of the contract, can be brought within:
    • ten days from the date of publication of the contract notice in the Official Journal of the EU or publication of a specification of the contract’s essential terms on the website;
    • five days from the date of publication of the contract notice in the Public Procurement Bulletin or publication of a specification of the contract’s essential terms on the website.
  • Further appeals are precluded after the above limits have lapsed.
  • The first instance judgment by the National Appeal Chamber (NAC) can be further appealed to the competent Regional Court within seven days from receiving the judgment together with a written justification.

6. How long is the standstill period?
  • There is a standstill period of:
    • no less than ten days from the day on which the information on the selection of the best tender was sent, if the information was sent by fax or e-mail, or 15 days – if sent by post, if the contract value is equal to or above the EU thresholds;
    • no less than five days from the day on which the information on the selection of the best tender was sent, if the information was sent by fax or e-mail, or ten days – if sent by post, if the contract value is below the EU thresholds.

7. Which review bodies exist?
The review body is the National Appeal Chamber (NAC).
Its decisions can be further appealed to the competent Regional Court.

8. Are there any filing fees for an appeal?
The amount of an appeal registration fee depends on the value and type of contract.
  • In case of supply and service contracts:
    • PLN 7,500 (approx. EUR 1,800) if the contract value is below the EU thresholds;
    • PLN 15,000 (approx. EUR 3,600) if the contract value is equal to or above the EU thresholds.
  • In case of construction works contracts:
    • PLN 10,000 (approx. EUR 2,400 ) if the contract value is below the EU thresholds;
    • PLN 20,000 (approx. EUR 4,800) if the contract value is equal to or above the EU thresholds.
  • A further appeal against the NAC’s decision is subject to a fee which amounts to five times the fee paid to the NAC.

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
If an appeal is filed, the contracting authority cannot sign the contract before the NAC has rendered its judgment.
There is no similar effect when filing a further appeal with a common court against the NAC’s decision.

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC
A procurement contract may be rendered null and void (by a constitutive court judgment) if the contracting authority:
  • used the negotiated procedure without publication or single-source procurement in breach of the provisions of the PPL;
  • failed to place the contract notice in the Public Procurement Bulletin or submit it to the Publications Office of the EU;
  • concluded the contract in breach of the standstill period, if this prevented the NAC from examining the appeal before the conclusion of a contract;
  • prevented contractors who were not admitted to participate in a dynamic purchasing system from submitting indicative tenders or prevented the contractors who were admitted to participate in a dynamic purchasing system from submitting tenders in a contract award procedure conducted within the framework of that system;
  • awarded the contract under a framework agreement prior to the expiry of the standstill period, to the prejudice of the contractors, with whom a framework agreement had been concluded;
  • applied the request-for-quotation in breach of the provisions of the PPL.

If one of the aforementioned situations occurs and a public procurement contract has already been concluded, when examining an appeal the NAC may:
  • invalidate the contract; or
  • invalidate the contract with regard to the unfulfilled obligations and impose a financial penalty in justified cases, in particular when return of benefits provided for under the contract is impossible; or
  • impose a financial penalty or shorten the duration of the contract if it is in the public interest, in particular in the field of defense and security, that the contract is upheld.

The financial penalty which the NAC may impose on the contracting authority can amount up to 10% of the contractor’s remuneration provided for in the contract, taking into account the type and scope of the violation.
When stating a violation of a standstill clause which was not connected with the violation of any other provision of the PPL, the NAC may impose on the contracting authority a financial penalty in the amount of up to 5% of the contractor’s remuneration provided for in the contract, taking into account all important circumstances relating to the award of the contract.
Additionally, the President of the Public Procurement Office (PPO) may apply to the court for an invalidation of the contract if any actions or omissions on the part of the contracting authority, in breach of the provisions of the PPL, had or might have had an influence on the outcome of the tender.
Portugal
By Gonçalo Guerra Tavares and Jorge Pação, CMS Lisbon
Amended as of April 2016
1. Where can one find public procurement notifications for Portugal?
  • Portuguese Electronic Official Journal (Diário da República Eletrónico): www.dre.pt.
  • BASE – the Portuguese public procurement portal. It publishes information on all contracts signed under the Public Contracts Code: www.base.gov.pt.

2. What are the relevant thresholds for the applicability of the Public Contracts Code?
  • The Public Contracts Code establishes that certain contracts shall only be subject to the provisions set therein, in the event that the value of such contract is equal to or exceeds the thresholds indicated below:

  • Awarded bySupply contractsServices contractsPublic Works contracts
    Entities mentioned in article 7 of the PCC, operating in the water, energy, transport and postal services’ sectors(*)EUR 418,000EUR 418,000EUR 5,225,000
    Private entities which are financed by more than 50% by contracting authorities (pursuant to article 2 of the PCC)EUR 209,000EUR 5,225,000

  • (*) According with article 12 of the PCC entities mentioned in article 2(2) are also submitted to the rules applicable to entities listed in article 7 when operating in the utilities sector. In the opposite sense the contracting authorities mentioned in article 2(1) of the PCC are submitted to the general rules when operating in the utilities sector.
  • The Public Contracts Code also establishes that contracting authorities may choose the direct award procedure in the event that the contract value is below the following amounts:

  • Public works contractsEUR 150,000
    Supply or services contractsEUR 75,000
    For any other contracts with the exception of public works concessions, public services concession and company contractsEUR 100,000

3. Under which circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
  • (i) (ii) The contracting authority is free to choose among the open and the restricted procedure. Open or restricted procedures may be used irrespective of contract values.
    The PCC establishes that the contracting authorities may choose an open or restricted procedure without prior notice on the Official Journal of the European Union in the event that the contract value is below the following amounts:

  • Public works contractsEUR 5,225,000
    Supply or services contractsEUR 209,000
    Supply or services contracts awarded by the State, except for cases reffered on paragraphs a) and b) of article 20 (2) of the PCC.EUR 135,000

  • (iii) The negotiated procedure can be used in the cases mentioned in article 29 of the PPC, as follows:
    • Previous irregular or non-acceptable tenders in another open or restricted procedure or competitive dialogue provided that the original terms of the contract are not substantially altered.
    • In exceptional cases, when the nature of the works, supplies or services or the risks attached thereto do not permit prior overall pricing;
    • In respect of public works contracts, for works which are performed solely for purposes of research, testing or development and not with the aim of ensuring profitability or recovering research and development costs;
    • In the case of services, inter alia, services within category 6 of Annex II A of Directive 2004/18/CE, and intellectual services such as services involving the design of works, insofar as the nature of the services to be provided is such that contract specifications cannot be established with sufficient precision to permit the award of the contract by selection of the best tender according to the rules governing open or restricted procedures.
    • Contracts whose celebration can be adopted either by way of the open procedure or the restricted procedure according to article 28 of the PCC.
    • The contracting authority is also free to choose among the open procedure, the restricted procedure and the negotiated procedure for public works concessions, public services concessions and company contracts (article 31).
  • (iv) Competitive dialogue is only applicable for particularly complex contracts and when contracting authorities consider that the open or the restricted procedure will not allow an adequate award of the contract.

4. Which decisions of a contracting authority can be appealed?
  • The PCC allows for the possibility of interested parties to present an administrative appeal for any of the decisions made during a public tender procedure. It is also possible to directly appeal from the specification documents.

5. Which time limits exist for appeals? Are further appeals precluded after these limits?
  • The administrative appeal must be filed within five business days as from the notification of the relevant act.
  • The failure to observe the time limits leads to preclusion.
  • Interested parties can also appeal to the Administrative Court of any acts related to public works, public works concessions, public supply contracts and service contracts, as well as related to the proceedings specifications. These are urgent proceedings and should be filed within 1 month as from the notification of the relevant act.

6. How long is the standstill period?
  • The standstill period starts with the announcement of the contract award decision and expires after ten days.

7. Which are the review bodies?
  • Review can be made by the contracting authorities and/or the Administrative Courts.

8. Are there filing fees for an appeal?
  • There are no fees for an administrative appeal made under the Public Contracts Code (principle of gratuitousness)
  • EUR 204 for a judicial appeal made under the Administrative Courts Law.

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
  • An administrative appeal made under the Public Contracts Code does not suspend the procedure but until the term for deciding on the appeal is not completed the following acts may not be undertaken: (i) qualification; (ii) beginning of the negotiation; and (iii) award of the contract.
  • Since the approval of Decree-Law no. 214-G/2015, 10th February, Judicial appeal made under the Administrative Courts Law has a suspensive effect with no need to apply for interim measures.

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC
  • As a general rule Public Contracts Code according to Directive 66/2007/EC establishes that public contracts are ineffective namely:
    • if the contracting authority has awarded a contract without prior publication of a contract notice in the Official Journal of the European Union without this being permissible;
    • If the contracting authority has awarded a contract before the expiry of the standstill period.
  • When a judicial or arbitral decision refrains from declaring the contract ineffective, the Public Contracts Code enforces the application of one of the following alternative penalties: (i) shortening of the duration of the contract or (ii) imposition of fines on the contracting entity;
  • The judicial or arbitral decision referred in the preceding paragraph cannot ward off the annulment effect based on balancing of an economic interest directly related to the contract in question, when such interest is based, inter alia, (i) in the costs resulting from delay in performance of the contract, (i) opening of a new procedure, (iii) change of the contractual party or (iv) change of legal obligations resulting from the annulment effect.

Romania
By Loredana Mihailescu and Alexandrina Dospinescu, CMS Bucarest
1. Where can one find public procurement notifications for Romania?
  • The Electronic System for Public Procurement (SEAP): www.e-licitatie.ro;
  • Official Journal of the European Union, for contracts with an estimated value equal to or higher than:
    • EUR 134,0005 for supply or services contracts awarded by contracting authorities outside the Utility Services Sector6;
    • EUR 414,0005 for supply or services contracts awarded by contracting authorities in the Utility Services Sector;
    • EUR 5,186,0005 for works contracts.
  • The contracting authority may choose to also publish the contract notices in the Official Gazette of Romania, Part VI, Public Procurement (Monitorul Oficial al Romaniei, Partea a VI-a, Achizitii Publice), available online under: www.monitoruloficial.ro

2. What are the relevant thresholds for the applicability of the public procurement law in Romania, i.e. the Government Emergency Ordinance no. 34/2006 for the award of public procurement contracts, public work concession contracts and services concession contracts (“GEO 34/2006”)
Contracts awarded bySupply contracts (EUR)Services contracts (EUR)Works contracts (EUR)
Contracting authorities outside the Utility Services Sector (mandatory publication of contract/award notice)134,000134,0005,186,000
Contracting authorities in the Utility Services Sector (mandatory publication of contract/award notice)414,000414,0005,186,000
Entities other than contracting authorities, in case of contracts subsidized directly by contracting
authorities by more than 50% (mandatory publication of contract/award notice)
207,0005,186,000
Concessionaires other than contracting authorities outside the Utility Services Sector (i.e. including contracting authorities in the Utility Services Sector) (mandatory publication of contract/award notice) 5,186,0005,186,000
Contracting authorities by direct procurement (publication of contract notice not required, but publication of simplified award notice is mandatory for contracts over EUR 5 000)30,00030,000100 000

3. Under what circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure (with or without prior contract notice), (iv) competitive dialogue, (v) call for offers, (vi) solutions contest, or (vii) dynamic purchasing system?
  • The contracting authority is free to choose among the open and the restricted procedure – Art. 20(1) GEO 34/2006;
  • a negotiated procedure with prior publication of a contract notice can be carried out in the following cases – Art. 110 GEO 34/2006:
    • if no tenders or no suitable tenders were submitted in response to an open procedure/restricted procedure, competitive dialogue or call for offers;
    • in exceptional, well-grounded situations, when the nature of works/supplies/services or the risks related to the performance of the contract do not allow prior overall estimation of contract price;
    • when due to the nature of the services to be provided (particularly financial and intellectual services), the tender book may not be drafted with the precision required for the application of the open or restricted procedure;
    • if the works to be performed are exclusively necessary for scientific research, experimental, or technological development purposes, and not aimed at securing a profit or recovering the corresponding costs;
  • a negotiated procedure without publication of a contract notice can be carried out in the following cases – art. 122 GEO 34/2006:
    • when, for technical or artistic reasons or for reasons connected with the protection of exclusive rights, the contract may only be awarded to a particular economic operator;
    • insofar as is strictly necessary when, for reasons of extreme urgency due to unforeseeable events which may not in any event be attributable to the relevant contracting authority, the mandatory deadlines for the open procedure, restricted procedure, or negotiated procedure with publication of a contract notice or call for offers cannot be complied with;
    • when the products involved are manufactured purely for the purpose of scientific research, experimentation, studies or technological development and not with the aim of securing a profit or recovering the corresponding costs;
    • for additional deliveries by the original supplier which are intended either as a partial replacement or extension of equipment/installations previously delivered, where a change of supplier would oblige the contracting authority to acquire products with different technical characteristics which would result in incompatibilities or increased technical difficulties in operation and maintenance; the length of such contracts as well as that of recurrent contracts may not, as a general rule, exceed three years;
    • for the acquisitions of raw materials quoted on a commodity market and purchased following spot market transactions;
    • for the purchase of supplies on particularly advantageous terms, from either a supplier which is definitively winding up its business activities, or from a syndic judge managing the business of a bankrupt supplier, or by an arrangement with creditors of such a supplier, or by a procedure similar to the above, regulated by the law;
    • for public service contracts, when the contract concerned follows a design contest and must, under the applicable rules, be awarded to the successful candidate or to one of the successful candidates – in the latter case, all successful candidates must be invited to participate in the negotiations;
    • for additional works or services not included in the original contract which have become necessary due to unforeseen circumstances for the performance of the contract, provided that the following conditions are cumulatively met:
      • the award is made to the initial contractor;
      • the additional works or services cannot be technically and economically separated from the original contract without major inconvenience to the contracting authority, or when such works or services, although separable from the original contract, are strictly necessary for its completion; and
      • the aggregate value of contracts awarded for additional works or services may not exceed 20% of the original contract price;
    • for new works or services similar to the works or services acquired under the original contract, provided that the following conditions are cumulatively met:
      • the contract is awarded to the original contractor and the new works or services consist in the repetition of the works or services included within the original contract and such works or services are in conformity with the requirements of the tender book based on which the original contract was awarded;
      • the original works or services contract was awarded according to the open or restricted procedure or to the call for offers procedure;
      • the estimated value of the original works or services contract was determined by taking into consideration the similar works or services that may subsequently be acquired;
      • the contract notice for the award of the original contract made reference to the right of the contracting authority to subsequently purchase similar works or services from the operator that was to be awarded the original contract;
      • the procedure may be used only during the three years following the award of the original contract.
  • the competitive dialogue procedure may be carried out in case of particularly complex contracts (i.e., contracts for which the contracting authority is unable for objective reasons to define the technical specifications and/or define the financial and/or legal structure for the implementation of the project), where the open/restricted procedure would not allow the contracting authority to award the contract – Art. 94-95 GEO 34/2006;
  • the call for offers procedure may be carried out if the estimated contract price is lower than the following thresholds – Art. 124 GEO 34/2006:
    • EUR 134,000 for supply contracts;
    • EUR 134,000 for services contracts;
    • EUR 5,186,000 for works contracts.
    (Please note that if the estimated contract price does not exceed EUR 30,000 for supplies or services, or EUR 100,000 for works, the contracting authority may resort to direct procurement – Art. 19 GEO 34/2006)
  • the solutions contest procedure (i.e., the procedure which enables the contracting authority to procure, mainly in the fields of town and country planning, urban or landscape design, architecture or data processing, a plan or design selected by a jury after being put out to competition, with or without the award of prizes) may be initiated as an independent procedure, where the competitors may obtain prizes and/or participation bonuses, or as part of another procedure which leads to the award of a services contract – Art. 18(2) and 131 GEO 34/2006;
  • the dynamic purchasing system is an electronic process that can be used by the contracting authority for the procurement of consumer goods, whose characteristics generally available on the market meet the requirements of the contracting authority, and is open, throughout its validity, to any economic operator which satisfies the selection criteria and submits an indicative tender compliant with the tender book specifications – Art. 151-152 GEO 34/2006, provided that the procurement of consumer goods through the dynamic purchasing system does not last for more than four years (save in exceptional, well-grounded cases).

4. Which decisions of a contracting authority can be appealed?
  • As a rule, an appeal may be filed against any acts of the contracting authority in relation to the contract award procedure. As such, an appeal is possible against the notification/invitation to tender, the tender documents, the responses of the contracting authority to the clarification requests regarding the clarification of the tender documents, the minutes of the meeting for evaluation of offers (procesul verbal de evaluare a ofertelor), the communication of the results of the tender, the contract award decision, as well as against any other documents related to the contract award decision.

5. Which time limits exist for appeals? Are further appeals precluded after the expiry of these limits?
  • Time limits for complaints before the National Council for Settlement of Complaints (Consiliul National de Solutionare a Contestatiilor) (“Council”), which is the competent court responsible for a settlement of any disputes arising in the course of the public procurement process until the award of the procurement contract (with the exception of any claims for damages that fall within the competence of the regular administrative courts):
    • Ten days from the day following the date on which the plaintiff acknowledged the act or omission of the contracting authority which is deemed illegal, if the estimated value of the contract equals to or exceeds the following thresholds – Art. 2562(1)(a) GEO 34/2006:
      • EUR 134,000 for supply or services contracts awarded by contracting authorities outside the Utility Services Sector;
      • EUR 414,000 for supply or services contracts awarded by contracting authorities in the Utility Services Sector;
      • EUR 5,186,000 for works contracts; or
    • five days with effect from the day following the date on which the plaintiff acknowledged the act or omission of the contracting authority which is deemed illegal, in case the estimated value of the contract is lower than the above mentioned thresholds – Art. 2562(1)(b) GEO 34/2006.
      In case of lots the thresholds apply to the value of each lot.
  • Time limit for appeals before the administrative courts competent to hear final appeals against the Council’s decisions:
    • ten days from the date of communication of the Council’s decision – Art. 281 GEO 34/2006.
  • Complaints and appeals filed after the above mentioned time limits are time- barred.

6. How long is the standstill period?
  • Eleven days from the date when the result of the contract award procedure was communicated to the participants (16 days if sent by post), in case the estimated value of the contract equals to or exceeds the following thresholds – Art. 205(1)(a) GEO 34/2006:
    • EUR 134,000 for supply or services contracts awarded by contracting authorities outside the Utility Services Sector;
    • EUR 414,000 for supply or services contracts awarded by contracting authorities in the Utility Services Sector;
    • EUR 5,186,000 for works contracts.
  • Six days from the date when the result of the contract award procedure was communicated to the participants (11 days if sent by post mail), in case the estimated value of the contract is lower than the following thresholds – Art. 205(1)(b) GEO 34/2006:
    • EUR 134,000 for supply or services contracts awarded by contracting authorities outside the Utility Services Sector;
    • EUR 414,000 for supply or services contracts awarded by contracting authorities in the Utility Services Sector;
    • EUR 5,186,000 for works contracts.
  • In case of lots the applicable standstill period is determined depending on the value of each lot.

7. Which review bodies exist?
Pursuant to the Public Procurement Law, the following review bodies are competent:
  • Optionally, the contracting authority for remedies. The applicant may directly submit its complaint to the first stage of review (see below);
  • the Council, which is competent to hear the plaintiff’s complaint (contestatie) and render a decision (first stage of review);
  • the Court of Appeals, through its Administrative Division (Sectia de Contencios Administrativ si Fiscal), having jurisdiction in the area where the contracting authority is headquartered, which is competent to hear the appeal against the decision rendered by the Council (second and final stage of review);
  • the Bucharest Court of Appeal, through its Administrative Division (Sectia de Contencios Administrativ si Fiscal), is competent to hear appeals against decisions rendered by the Council in relation to award procedures concerning services or works contract in the field of transport infrastructure which is of national interest (as defined in the applicable legislation);
  • the Tribunals, through their Administrative Divisions (Sectia de Contencios Administrativ si Fiscal), having jurisdiction in the area where the contracting authority is headquartered, which are competent to hear claims regarding (i) damages incurred during the process of the award procedure, and (ii) performance, ineffectiveness or termination of the public procurement contract.

8. Are there any filing fees for an appeal?
  • Before the Council:
    • There are no filing fees for an appeal, but in the event that the Council rejects the complaint on the merits or the applicant withdraws it, an amount shall be drawn from the participation guarantee submitted by the applicant, as follows – Art. 2781(1)-(2) GEO 34/2006:
      • contracts over EUR 30,000 (supplies or services contracts)/EUR 100,000 (works contracts) and up to RON7 420,000 – 1% of the contract value;
      • contracts between RON 420,001 and RON 4,200,000 – RON 4,200 + 0.1% of the difference between contract value and RON 420,001;
      • contracts between RON 4,200,001 and RON 42,000,000 – RON 7,980 + 0.01% of the difference between contract value and RON 4,200,001;
      • contracts between RON 42,000,001 and RON 420,000,000 – RON 11,760 + 0.001% of the difference between contract value and RON 42,000,001;
      • contracts between RON 420 000 001 and 4,200,000,000 – RON 15,540 + 0.0001% of the difference between contract value and RON 420,000,001;
      • contracts over RON 4,200,000,001 – RON 19,320 + 0.00001% of the contract value in excess of RON 4,200,000,001.
    • The amount shall not be drawn in case the applicant withdraws the complaint following a remedial action, taken by the contracting authority on its own initiative. Following appeals: (a) if the competent court admits the appeal filed against the decision of the Council rejecting the complaint, the contracting authority is bound to return to the complainant the amounts drawn from the participation guarantee; (b) if the competent court admits the appeal filed against the decision of the Council admitting the complaint and rejects the complaint on the merits, the contracting authority shall retain the amounts drawn from the participation guarantee – Art. 2781(3)-(5) GEO 34/2006.
  • Before the competent courts, the plaintiff is bound to pay a judicial fee (taxa de judiciara de timbru), the amount depends on the object of the dispute:
    • in case of appeals filed with the Courts of Appeal against decisions of the Council: RON 2 – Art. 2851 and 28517(2) GEO 34/2006;
    • in case of claims filed with the Tribunals regarding (i) damages incurred in the course of the award procedure, and (ii) performance, ineffectiveness or termination of the public procurement contract – Art. 28517(1)-(2) GEO 34/2006:
      • up to RON 40,000 – 1% of the value of the dispute;
      • between RON 40,001 and RON 400,000 – RON 400 + 0.1% of a dispute value exceeding RON 40,000;
      • between RON 400,001 and RON 4,000,000 – RON 760 + 0.01% of a dispute value exceeding RON 400,001;
      • between RON 4,000,001 and RON 40,000,000 – RON 1,120 + 0.001% of a dispute value exceeding RON 4,000,001;
      • between RON 40,000,001 and RON 400,000,000 – RON 1,480 + 0.0001% of a dispute value exceeding RON 40,000,001;
      • between RON 400,000,001 and RON 4,000,000,000 – RON 1,840 + 0.00001% of a dispute value exceeding RON 400,000,001;
      • over 4,000,000,000 – RON 2,200;
      • RON 4 if the object of the dispute cannot be evaluated in monetary terms.
  • If successful, the plaintiff is entitled to recover the judicial fee, provided that the reimbursement is requested by a submission to the court.

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
  • An appeal before the Council or the Courts of Appeals does not automatically suspend the award procedure;
  • in any case, the contracting authority may not award the contract before the Council’s decision has been communicated; this is an automatic suspension which only delays the conclusion of the contract, not the award procedure itself (please note that in case of lots this interdiction applies only to the lots for which the award procedure has been appealed; also, if the Council’s decision is communicated during the standstill period, the contracting authority will have to wait until the standstill period has lapsed) – Art. 2563(3)-(5) GEO 34/2006;
  • an application for an interim injunction is possible before both the Council and the courts, but the effect sought by the plaintiff may vary as follows:
    • before the Council, the plaintiff may ask for the suspension of the award procedure (please note that this is likely not to be awarded in case the appeal is against the result of the award procedure as the contracting authority may not award the contract before communication of the Council’s decision);
    • before the Tribunals/Courts of Appeal, the plaintiff may ask for a suspension of the contract performance – Art. 2831 and 2877 GEO 34/2006.

10. Ineffectiveness and alternative penalties according to Directive 66/2007/EC
  • The ineffectiveness of the contract may be declared by the courts in the following cases – Art. 28710 (1) GEO 34/2006:
    • the contract was awarded without prior publication of a contract notice;
    • the contract was concluded before the standstill period had lapsed or before the Council’s decision on the appeal had been communicated, if this deprived the tenderer applying for review of the possibility to pursue pre-contractual remedies where such an infringement is combined with another infringement of the procurement rules, if that infringement has affected the chances of the tenderer applying for a review to obtain the contract (please note that in other cases where the contract has been awarded illegally on the grounds that the authority did not observe the standstill period/did not wait for the communication of the Council decision on appeal, but where the other conditions referred to above are not met, the court may decide to either declare the contract ineffective or apply alternative penalties);
    • the contract was concluded based on a framework agreement in which not all the terms had been fixed in advance, without reopening competition between the parties to the framework agreement in relation to those terms;
    • the contracting authority breached the rules applicable to the procurement through a the dynamic purchasing system;
    • in other cases provided by the law.
  • In case the contract has been awarded illegally on any of the grounds mentioned above, the court may not consider the contract ineffective if it finds, after having examined all relevant aspects, that overriding reasons relating to a general interest require that the contract remain effective. In this case, the court shall apply alternative penalties, as follows – Art. 28710 (2)-(6) GEO 34/2006:
    • shortening the duration of the contract;
    • imposing fines on the contracting authority, ranging from 2% to 15% of the contract value (this will always be imposed in case ineffectiveness cannot operate because the contractual obligations were already fulfilled and cannot be undone).
    Please note that:
    • economic interests with respect to the effectiveness of the contract may only be considered as overriding reasons if in exceptional circumstances ineffectiveness would lead to disproportionate consequences;
    • economic interests directly linked to the contract shall not constitute overriding reasons relating to a general interest; economic interests directly linked to the contract include, inter alia, the costs resulting from a delay in the execution of the contract, the costs resulting from a launching of a new procurement procedure, the costs resulting from a change of the economic operator performing the contract and the costs of legal obligations resulting from an ineffectiveness;
    • granting damages does not constitute an adequate alternative penalty.
  • In situations where the contract has been awarded illegally on grounds that the authority did not observe the standstill period or did not wait for the communication of the Council decision on appeal, in other cases than those referred to above, the court may decide whether to declare the contract ineffective or to impose alternative penalties – Art. 28711 GEO 34/2006.

Russia
By Maxim Boulba and Elena Andrianova, CMS Moscow
1. Where can one find public procurement notifications for Russia?
  • Unified Information System is in place which includes information on all public procurement requests and is accessible via the official website.

2. What are the relevant thresholds for the applicability of Russian procurement law?
  • The applicability of the Russian public procurement law is not contingent on specific thresholds. The general rule is that state (or municipal) contracts in terms of which Russian state/municipal authorities or budget institutions purchase goods (or services) should be entered into by way of public procurement.
  • This being said, the thresholds may be relevant in deciding on the applicable public procurement procedure. For instance, if the contract price does not exceed RUB 500,000 (approx. EUR 10,000) the, so-called, simplified procedure of ‘request for quotations’ shall apply (see comment below regarding the types of public procurement procedures) (Art. 72(2) of the Russian Public Procurement Law No. 44-FZ).

3. Under what circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
  • In terms of Russian Public Procurement Law the following main types of public procurement procedures exist (Art. 24 of the Russian Public Procurement Law):
    • Tender (during the tender procedure the winner is the one who proposed the better contractual terms and conditions, not only pricing conditions).
    • Auction (the winner is the one who proposed the lowest price);
    • ‘Request for quotations’ being a simplified public procurement procedure where the winner is identified based on the proposed price. This procedure may be applied in a limited number of cases, and, mainly, for ‘small’ contracts (below 500 000 RUB);
    • ‘Request for proposals’ being a relatively new type of public procurement which is based on the assessment of contractual terms and conditions (similar to tenders), but is more straightforward from a technical standpoint. One can use this procedure in a limited number of cases provided by the law (for instance, for diplomatic missions when the amount is below RUB 15m, etc).

    These types of public procurement procedures involve a competition between participants and are considered as ‘competitive procedures’.

    In addition to the above ‘competitive procedures’, a public procurement notification may be issued to a single supplier but only in a limited number of cases (for instance, when a natural monopoly is involved, etc.).
  • Under the general rule, the public procurement procedures should be open. Therefore, restricted (or closed) procedures (for instance, closed tender or closed auction) are subject to approval by the competent state authorities (for instance, Federal Antimonopoly Service, or Federal Service for Public Procurement for Defence Purposes) and are limited to situations involving state secrets or specific state interests (Art. 84 of the Russian Public Procurement Law).

4. Which decisions of a contracting authority can be appealed?
  • The following decisions (actions) of the contracting authority can be appealed: tender (auction) documentation, other decisions/actions made within the tenders/auctions procedures, the results of the tender/auction process, the contract award decision.

5. What time limits exist for appeals? Are further appeals precluded after the expiry of these limits?
  • First of all, one should note that there are two main routes of appealing public procurement decisions/actions: the administrative route (appeal to the state authority controlling the public procurement area, namely the Federal Antimonopoly Service and its territorial divisions), and the judicial route (to the courts).
  • As regards the administrative appeals to the FAS, the time limits for appeals are quite stringent, namely:
    • Appeals against tender/auction documentation may be submitted only before the term for submission of bids has expired;
    • appeals against other decisions/actions – within ten days following the publication in the Unified Information System of the results of the tender/auction.
  • The decisions/actions can be further appealed to the courts. In this case, the limitation period for judicial appeals is three months.

6. How long is the standstill period?
  • The general rule is that the standstill period starts with the publication announcement of the contract award decision in the Unified Information System and expires after ten days (Art. 54(2) and 70(9) of the Russian Public Procurement Law).

7. Which review bodies exist?
  • The Federal Antimonopoly Service (and its territorial divisions) is the main controlling authority in the area of public procurement in Russia. As far as the area of defence is concerned, the competent state authority shall be the Federal Service for Public Procurement for Defence Purposes.
  • The commercial (‘arbitrazh’) courts are competent to hear judicial appeals on public procurement related issues.

8. Are there any filing fees for an appeal?
  • There are no filing fees for an appeal submitted to the Federal Antimonopoly Service (and its territorial divisions).
  • As regards the judicial appeal, the general rule on state duties applies.

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
  • The competent state administrative bodies (such as the Federal Antimonopoly Service or the Federal Service for Public Procurement for Defence Purposes) are entitled by law to suspend the public procurement procedure until the appeal has been considered and decided, and they usually do so in practice. This being said, it is always recommendable to include the request for interim measure within an appeal submission.
  • As regards the judicial appeal proceedings it is necessary to specifically apply for interim measures.

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC
Not applicable as Russia is not an EU member state.
Scotland
Amended as of June 2017
By Graeme Young and Helen Fyfe, CMS Edinburgh
The rules below apply only to public procurement contracts in Scotland. Different rules apply to public procurements in England, Wales and Northern Ireland and these rules should be consulted separately.
1. Where can one find public procurement notifications for Scotland?
All Scottish contracting authority contract notices can be found on Tenders Electronic Daily (ted.europa.eu).
All notices must also be published on the Public Contracts Scotland portal (http://www.publiccontractsscotland.gov.uk/). These include procurements with values below the EU thresholds.
2. What are the current thresholds for the applicability of the Public Contracts Regulations?
The Public Contracts (Scotland) Regulations 2015 (PC(S)R 2015) require competitive processes to be followed for contracts with estimated values exceeding the EU thresholds (unless any relevant exclusions or exceptions apply). These procurements are generally referred to as ‘EU-regulated procurement’.

The current EU thresholds are:
Services Supplies Works
Central government bodies
(Schedule 1 PC(S)R 2015)
GBP 106,047
(EUR 135,000)
GBP 106,047
(EUR 135,000)
GBP 4,104,394
(EUR 5,225,000)
Other public bodies GBP 164,176
(EUR 209,000)
GBP 164,176
(EUR 209,000)
GBP 4,104,394
(EUR 5,225,000)

with the exception of certain social and other specified services in Schedule 3 PC(S)R 2015, which have a threshold of GBP 589,148 (EUR 750,000), including (among others):
  • health, social and related services;
  • benefit services;
  • investigation and security services; and
  • certain legal services.

The thresholds are reset in domestic currencies every two years.
Separate legislation applies to below EU threshold regulated procurements under the Procurement Reform (Scotland) Act 2014, with the thresholds currently GBP 50,000 for supplies and services and GBP 2,000,000 for public works contracts. Contracts with estimated values above these thresholds, but below the EU threshold, are subject to competitive tendering rules set out in the 2014 Act and secondary Scottish legislation, The Procurement (Scotland) Regulations 2016. These procurements are generally referred to as ‘other regulated procurement’.
3. Under which circumstances can one use the: (i) open procedure, (ii) restricted procedure, (iii) competitive procedure with negotiation, (iv) competitive dialogue procedure, and (v) innovation partnership procedure?
The open and restricted procedures are generally preferred for more straightforward (and often recurrent), EU-regulated procurements, where no negotiation is required (and is not permitted). The competitive procedure with negotiation and competitive dialogue procedure are used in more complex procurements. The innovation partnership procedure is used where there is a need to develop a new and innovative product not currently provided for in the market.
  • Open Procedure – Regulation 28
    This procedure must be open to all interested parties and there is no initial selection or pre-qualification stage, with tenders invited, evaluated and an award decision reached. Generally suitable only for the most straightforward procurements where the contract specification is clear and can be priced, with no need to negotiate with bidders.
  • Restricted Procedure – Regulation 29
    All interested parties can submit an expression of interest in response to a call for competition (OJEU contract notice), but only those meeting the pre-qualification or selection criteria will be invited to submit a tender. The initial selection stage must be conducted using the ESPD (Scotland) document (a modified form of the ESPD). This two-stage procedure allows authorities to limit the number of candidates that will be invited to tender to a minimum of five, assuming that five or more candidates satisfy the minimum pre-qualification requirements. No negotiations with bidders are permitted at ITT stage.
  • Competitive Procedure with Negotiation (CPN) Procedure – Regulation 30
    Reserved for more complex contracts, this procedure involves an initial selection or pre-qualification stage using the ESPD (Scotland), after which a minimum of three eligible candidates are invited to negotiate the contract. Authorities are required to negotiate the contract on the basis of an initial tender (unless they have reserved the right in the contract notice to award the contract on the basis of the initial tenders). No negotiations are permitted on the minimum requirements or the award criteria. The negotiation phase may be conducted in successive stages to reduce the number of tenders (provided this was provided for in the OJEU contract notice). The authority must not conduct any further negotiations with bidders following submission of final tenders.
  • Competitive Dialogue (CD) Procedure – Regulation 31
    This procedure is also reserved for more complex contracts and involves an initial selection or pre-qualification stage using the ESPD (Scotland), after which a minimum of three eligible candidates are invited to participate in dialogue. Dialogue generally takes place over successive stages and involves a reduction in the proposed solutions. Once the authority is satisfied it has at least one solution capable of meeting its needs and requirements, it can close the dialogue phase and invite final tenders from the remaining bidders. Any negotiation and finalisation of the terms of the contract must not involve changes to the essential aspects of the tender or the procurement, including the authority’s needs and requirements, where such changes are likely to distort competition or cause discrimination.
  • Innovation Partnership Procedure – Regulation 32
    This procedure is intended for the situation where there is a need for the development of an innovative product or service or innovative works not already available on the market. It allows authorities to establish a long-term innovation partnership for the development and subsequent purchase of a new, innovative product, service or works without the need for a separate procurement procedure once the product, service or work has been developed.
  • Negotiated procedure without prior publication – Regulation 33
    In limited circumstances, authorities may award contracts without the need to advertise them to the market, where no tenders or suitable tenders have been submitted, where only a particular operator can meet the authority’s demands or where there is extreme urgency.

Under Regulation 27(4) of the PC(S)R 2015, the use of both the CPN and CD procedure is only available to authorities where:
  • the needs of the authority cannot be met without adaptation of readily available solutions;
  • the works, supplies or services required include design or innovative solutions;
  • the contract cannot be awarded without prior negotiations because of specified circumstances related to the nature or complexity of the works, supplies or services or the legal and financial make-up or because of the risks attaching to any of them;
  • the technical specifications of the works, supplies or services cannot be established with sufficient precision by the authority with reference to a standard, European Technical Assessment, common technical specification or technical reference; or
  • in response to an open or restricted procedure only irregular or unacceptable tenders are submitted.

The above exceptions are likely to be narrowly construed.
4. Which decisions of a contracting authority can be appealed?
Any decision by an authority can be challenged if it can be considered to amount to an actionable breach of the authority’s duties to a bidder or other economic operator (see Regulation 87 of the PC(S)R 2015). Such a breach is only actionable where the bidder or other economic operator can show it has suffered, or risks suffering, loss or damage as a consequence of the breach (see Regulation 88 of the PC(S)R 2015).
As contracting authorities are public bodies acting in pursuit of a public function it may be possible to challenge decisions by way of judicial review. Judicial review actions will, however, not be competent where a right of action exists under the PC(S)R 2015 and any challenger will be required to show they have standing.
5. What are the time limits for appeals? Are further appeals precluded after the expiry of these time limits?
The general time limit for bringing proceedings in respect of EU-regulated procurements is 30 days running from the date when the economic operator ‘first knew or ought to have known that grounds for starting the proceedings had arisen unless the court considers that there is a good reason for extending the period within which proceedings may be brought, in which case the court may extend that period up to a maximum of three months’ (see Regulation 88(4)(b) of the PC(S)R 2015). Separate time limits apply for other regulated procurement.
Separate time limits for the bringing proceedings apply where seeking an ineffectiveness order:
  • 30 days from the date of publication of a valid OJEU contract award notice or otherwise the date the authority sends a contract award decision notice to all unsuccessful bidders and any candidates not already informed of their disqualification; or
  • in any other case, six months from the date of the contract being entered into.

6. How long is the standstill period?
Under the PC(S)R 2015, the issuing of award decision letters (containing certain prescribed information) to all unsuccessful bidders triggers a standstill period that must be at least ten calendar days (where communication of the letter is by electronic means). Only after this period has elapsed may the authority enter into the contract with the successful bidder.
7. Which review bodies exist?
Proceedings in Scotland must be brought in the Sheriff Court or the Court of Session (see Regulation 88(2) of the PC(S)R 2015). In practice, most procurement challenges are brought in the Court of Session, if the claim is for more than GBP 100,000.
Proceedings may not be brought unless the claimant has informed the authority of the breach or apprehended breach of the duty owed to it and of its intention to bring proceedings in respect of that breach or apprehended breach. In addition, those proceedings must be brought within the relevant time limit (as described above).
8. Are there any filing fees for an appeal?
The usual practice is to file a claim in the Court of Session, where the filing fee under The Court Fees (Miscellaneous Amendments) (Scotland) Order 2016 is GBP 300.00, as from 28 November 2016.
9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
Where proceedings (a summons) are served at any point before the contract has been entered into, the authority must not enter into the contract until those proceedings are ‘determined, discontinued or disposed of’, unless the court agrees to lift the prohibition by interim order (see Regulation 89 of the PC(S)R 2015). Otherwise, it is necessary to apply for interim measures.
10. Ineffectiveness and alternative remedies
The court must make an ‘ineffectiveness order’ if satisfied that one of three grounds applies:
  • the authority has awarded a contract without following an OJEU advertised tender process, where one was required (i.e. makes an illegal direct award);
  • the authority has failed to conduct a valid debrief and standstill process preventing the challenger from raising proceedings and has breached an actionable duty owed to the challenger when conducting the tender process (i.e. an aggravated breach when following an OJEU advertised tender process); or
  • the authority has breached the rules on mini-competitions under a framework agreement or dynamic purchasing system and the value of the call-off contract is above the relevant EU threshold (i.e. an illegal call-off contract).

(see Regulation 91 of the PC(S)R 2015)
To protect against the risk of an ineffectiveness challenge to the lawful direct award of a contract, an authority can publish a Voluntary Ex-Ante Transparency (VEAT) notice in the OJEU. The purpose of a VEAT notice is to notify the market of an intention and justification for a direct award. Provided the authority then observes a 10-day standstill period before entering into the contract, the first ground for ineffectiveness does not apply.
The third ground of ineffectiveness (illegal call-off contract) does not apply where the authority has communicated the contract award decision to bidders and observed a valid standstill period.
Otherwise, if one of the ineffectiveness grounds is satisfied, the court will make an ineffectiveness order, setting aside the contract and rendering unenforceable all rights and obligations under it from the date of the order. The court may however decline to make an ineffectiveness order where it is satisfied that overriding reasons relating to a general interest require that the enforceability of the rights and obligations arising from the contract should be maintained.
When a court declares a contract ineffective, the court must also impose a financial penalty on the authority (there is no upper limit) and deal with consequential matters, making such other orders as it considers necessary to address the consequences of the ineffectiveness order (see Regulation 92 of the PC(S)R 2015).
Serbia
By Ksenija Ivetic, CMS Belgrade
Amended as of April 2016
1. Where can one find public procurement notifications for Serbia?

2. Which are the relevant thresholds for the applicability of the Serbian Public Procurement Act?
There is only one prescribed threshold for the applicability of the Public Procurement Act (Official Gazette of the Republic of Serbia no. 124/12, 14/2015 and 68/2015) (hereinafter the “PPA”)
For the procurement of goods, services, or works, the value of which does not exceed RSD 500,000 (app. EUR 4,074) per annum, and under the condition that the aggregate annual value of the same type of procurements does not exceed the above threshold, the contracting authority is not obliged to apply the provisions of the PPA.
3. Under which circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
  • The contracting authority is free to choose among the open and the restricted procedure (art. 31 of PPA).
  • Negotiated procedure can be carried out with or without the announcement of a public call for submission of offers (art. 35-36 of PPA).
    • Negotiated procedure with the announcement of a public call may be used:
      • if none of the offers received in the open procedure, restrictive or qualifying procedure or competitive dialogue, is acceptable;
      • in exceptional cases where, due to the nature of goods or services or due to associated risks it is not possible to predict the value of procurement; and
      • in case of procurement of services, the nature of which renders them impossible to be specified and conditions for competitive dialogue are not met.
    • Negotiated procedure without the announcement of a public call may be used:
      • if no offers or applications were received in the open or restrictive procedure, or no offer is acceptable;
      • if, due to technical or artistic reasons relating to the subject of procurement, or due to reasons relating to the protection of exclusive rights, procurement can only be made by a specific candidate;
      • if, due to emergency caused by extraordinary circumstances or unpredictable events, the contracting authority was prevented to act within the deadlines prescribed for the open or restrictive procedure;
      • with additional deliveries of goods from the same supplier, where these goods are intended to partially replace products, materials or fittings or to expand the volume of current products materials or fittings;
      • with additional services or works that were not included in the initial project or in the initial public procurement agreement, which due to unforeseeable circumstances have become necessary for the execution of the public procurement agreement;
      • in case of public procurement of goods which are traded in commodity markets;
      • in case of procurement of goods under exceptionally favorable terms from a supplier which entered liquidation or insolvency; and
      • in case of procurement of services which takes place as an extension of an already carried out design contest, if the contract is concluded with the awarded contestant or contestants, and under the condition that the contracting authority includes all awarded contestants in the negotiated procedure.
  • Competitive dialogue can be applied where the subject of procurement is particularly complex, so that the procurement contract cannot be concluded through the open or the restrictive procedure (art. 37 of PPA).

4. Which decisions of a contracting authority can be appealed?
Appeal can be submitted during the entire procurement procedure, against any decision reached by the contracting authority, unless the PPA stipulates otherwise (art. 149 of PPA).
5. Which time limits exist for appeals? Are further appeals precluded after these limits?
An appeal against the decision on the type of procurement procedure, the content of a public call for submission of bids or the content of procurement documents:
  • at least seven days prior to the expiration of deadline for submission of bids;
  • three days in case of qualification procedure and procedure on procurements of small value (where annual value of the subject of procurement does not exceed RSD 5m i.e. app. EUR 40,750),
  • in any case, under the condition that, in accordance with statutory provisions (Art. 63), the person filing the appeal already pointed out before the contracting authority all and any perceived deficiencies and the contracting authority failed to remedy these deficiencies.

After the decision on the award of contract, on the conclusion of a framework agreement, on the recognition of qualified bidders, and on the cessation of procedure has been reached:
  • ten days from the announcement of decision on the Internet Portal for Public Procurement Announcements;
  • five days from the receipt of decision in case of procurement of small value as well as in case of decision based on framework agreement as per Art. 40 of the PPA.

The actions of contracting authority in the procurement procedure cannot be appealed if the bidder knew or was able to know about the reasons for filling an appeal before expiry of stipulated deadlines and if the bidder did not file it before expiry of the deadline.
6. How long is the standstill period?
The contracting authority may only conclude the procurement contract upon expiration of deadlines prescribed for the submission of appeal or, if the appeal is filed, upon rejection of appeal (art. 112 of PPA).
7. Which are the review bodies?
The State Commission (“Republicka komisija”) decides on the appeal filed against a decision of the contracting authority regarding the award of contract.

Against decision of the State Commission can be initiated administrative dispute before Administrative Court.
8. Are there filing fees for an appeal?
Fees to be incurred for the filing of an appeal differ as follows:
  • RSD 60,000 (app. EUR 129) in the procedure of public procurement of small value and in the negotiated procedure without the announcement of a public call;
  • RSD 120m (app. EUR 978) if the appeal is filed prior to the opening of bids or if the estimated value of the public procurement does not exceed RSD 120m (app. EUR 977,995);
  • RSD 250,000 (app. EUR 2,037) if the appeal is filed prior to the opening of bids and if the estimated value of the public procurement exceeds RSD 120m (app. EUR 977,995);
  • RSD 120,000 (app. EUR 2,037) if the appeal is filed after the opening of bids and if the estimated value of the public procurement does not exceed RSD 120m (app. EUR 977,995);
  • RSD 120,000 (app. EUR 2,037) if the appeal is filed after the opening of bids and if the estimated value of all the disputed tranches does not exceed RSD 120m (app. EUR 977,995), where the public procurement is organized in tranches;
  • 0,1% of the estimated value of the public procurement or the price offered by the awarded bidder, if the appeal is filed after the opening of bids and if such estimated value is more than RSD 120m (app. EUR 977,995);
  • 0,1% of the aggregate estimated value of all the tranches of the public procurement, or the price offered by the awarded bidder, if the appeal is filed after the opening of bids and if such estimated value exceeds RSD 120m (app. EUR 977,995).

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
The appeal has immediate suspensive effect. It prevents the contracting authority from undertaking any further activities until the decision on the appeal has been reached (art. 150 of PPA).

In the following cases the appeal does not have suspensive effect:
  • in the negotiated procedure without the announcement of a public call, where this procedure is carried out due to exceptional emergency caused by extraordinary circumstances or unforeseeable events;
  • based on an elaborated decision of the responsible person of the contracting authority, if the delay caused by the suspensive effect would result in significant difficulty in the carrying out of business activities of the contracting authority, whereby such difficulty is disproportional to the scope of the procurement;
  • upon approval of the State Commission where the delay caused by the suspensive effect would significantly jeopardize interests of the Republic of Serbia.

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC
Serbia is not yet an EU member state. Therefore, none of the EU directives apply directly to the citizens and entities in Serbia. However, efforts have been made to incorporate into the legal framework regulating public procurements the relevant principles contained in EU directive 66/2007/EC.

In this sense:
  • the State Commission is entitled to consider a procurement contract ineffective, either by its own initiative or upon proposal of an interested party, in cases stipulated in the PPA (art. 163 of PPA); and
  • alternative penalties will apply and the State Commission will not consider the contract ineffective if doing so would have excessive detrimental consequences for the business operations or functioning of the contracting party or for the interests of the Republic of Serbia. In this case, the State Commission is entitled to shorten the duration of the public procurement contractor to impose a fine on the contracting authority up to RSD 1m (app. EUR 8,620) (art. 162 and 163 of PPA).

Slovakia
By Petra Čorba Stark, CMS Prague
Amended as of April 2016
1. Where can one find public procurement notifications for Slovakia?
  • Official Journal of the Public Procurement Authority (Úrad pre verejné obstarávanie) online
  • Slovak contracting authorities and contracting entities also publish tender notices on their respective websites.

2. What are the relevant thresholds for the applicability of the Slovak Procurement Law (Zákon o verejnom obstarávaní – ZVO)
  • The law recognizes two basic categories of contracts – the so called over-limit contracts and below-limit contracts. Full applicability of the law concerns the over-limit contracts whose thresholds are set out in the table below. Save for certain exemptions, below-limit contracts are also subject to very similar formal requirements.
  • Contracts under EUR 20,000 (supplies and services), EUR 70,000 (works) and EUR 40,000 (food) are subject to very few formal requirements, provided that the subject matter of the contract is not regularly available on the market (vague definition set out by law). If the supplies, services or works are regularly available on the market and with thresholds lower than EUR 5,000, then the contracts will be awarded through a state-run electronic market.
  • Over-limit contracts:

Awarded by8Supply contractsServices contractsWorks contracts
Central government authorities135,000135,0005,225,000
Central government authorities operating in the field of defence concerning products set out in Annex III Directive 2014/24/EU135,000
Central government authorities operating in the field of defence concerning products other than set out in Annex III Directive 2014/24/EU209,000
Contracting authorities other than central government authorities209,000209,0005,225,000
Utility Services Sector418,000418,0005,225,000

3. Under what circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
  • The contracting authority is free to choose among the open and the restricted procedure – § 66, § 67 ZVO.
  • A negotiated procedure with publication can be carried out, provided that it relates to the procurement of supplies, works or services and at the same time at least one of these conditions must have been fulfilled (§ 70 ZVO):
    • needs of the contracting authority cannot be satisfied without adaptation of accessible solutions;
    • an innovative solution or proposal of innovative solution forms part of the procurement;
    • it is impossible to grant the contract without negotiation due to a specific situation which relates to the nature and complexity of the subject of the contract, legal or financial conditions of the contract or associated risks;
    • the contracting authority cannot precisely define technical specifications according to the § 42(2) b) ZVO;
    • provided that all tenders submitted in response to an open or restricted procedure were irregular or unacceptable; the contracting authority is not obliged to publish the contract notice if they negotiate with all tenderers who meet the conditions of participation, and they have submitted tenders complying with formal requirements of the public procurement in prior open procedure or restricted procedure.
  • In the utility services sector the use of the negotiated procedure with publication is always possible (§ 94 ZVO)
  • A negotiated procedure without publication (“direct negotiated procedure”) can be carried out (§ 81 ZVO):
    • when no tenders or no suitable tenders or no applications have been submitted in response to an open or restricted procedure provided that the initial contract conditions shall not be changed in a material way;
    • supplies, works or services can only be provided by specific economic entity on condition that: the subject of the contract relates to a specific work of art; there is no economic competition due to technical reasons and no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement; it relates to exclusive rights provided that no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement;
    • insofar as it is strictly necessary, for reasons of extreme urgency due to unforeseeable events;
    • in cases of public supply contracts when the products involved are manufactured purely for the purposes of research, experiments, education or development;
    • in case of additional supplies from the original supplier as a partial replacement or extension of the initial supplies provided that a change of suppliers would require the contracting authority to procure goods of a different technical nature leading to incompatibility or material operational issues;
    • in case of commodities quoted and purchased on a commodity market;
    • in case of supplies procured under particularly advantageous conditions from a liquidation trustee, bankruptcy administrator or law enforcement officer;
    • in cases of contracts when the contract concerned follows a design contest;
    • for certain new works and services provided that this option was mentioned in the contract award notice and those works and services are awarded no later than three years from the execution of the initial contract.
  • There are slightly more cases justifying the use of direct negotiated procedure in the utility services sector (§ 98 ZVO).
  • A competitive dialogue (§ 74 ZVO) can be used provided that the procurement relates to supplies, works or services and at least one of the conditions mentioned in § 70 ZVO is fulfilled. This does not apply to the utility services sector.

4. Which decisions of a contracting authority can be appealed?
  • An appeal is possible against unlawful contract award decisions, discriminatory technical, economic or financial specifications in the invitation to tender, the contract documents and virtually any other document and/or action related to the contract award procedure (§164 and § 170 ZVO), for example:
    • open procedure: contract award notices, tender documents, clarification of the tender documents, disqualification, contract award decisions,
    • restricted procedure: contract award notices, a decision on non-shortlisting, an invitation to submit a tender, disqualification, contract award decisions,
    • negotiated procedure: the mere fact that the negotiated procedure was used, contract award notices, decisions on non-shortlisting, invitation to submit a tender, disqualification, contract award decisions,
    • competitive dialogue: the mere fact that the competitive dialogue was used, contract award notices, decisions on non-shortlisting, descriptive documents, decisions on non-consideration of a solution during the dialogue stage, invitations to submit a tender, final tender documents, disqualification, contract award decisions.

5. What time limits exist for appeals? Are further appeals precluded after the expiry of these limits?
  • Generally ten days from the delivery of the respective document/occurrence of the respective action. The period starts the day following the above.
  • The failure to observe the time limits leads to a preclusion.

6. How long is the standstill period?
  • The standstill period starts with the announcement of the contract award decision and expires after 15 days. The contract can be concluded at the earliest on the 16th day.

7. Which review bodies exist?
  • The first stage of the review procedure entails a review by the contracting authority. Generally, this only applies to documents/actions which do not lead to non-shortlisting or disqualification.
  • The second stage entails a review by the Public Procurement Authority. However, the Public Procurement Authority always acts as the first instance in case of documents/actions which lead to non-shortlisting or disqualification.
  • Decisions by the Public Procurement Authority are further appealable to the Board of the Public Procurement Authority.
  • The decisions are also subject to judicial review.

8. Are there any filing fees for an appeal?
  • The fees are applicable only for appeals filed with the Public Procurement Authority or the Board of the Public Procurement Authority.
  • Charges depend on the type of procedure and the relevant stage of the procedure – § 172 ZVO – and are always calculated as percentages of the expected or actual bid price.
  • Charges before the bid prices have been revealed (for example in restricted procedures) are as follows:
    • 1% of the expected value, but not more than EUR 4,000 in case of over-limit public supply and public service procurements,
    • 0,1% of the expected value, but not more than EUR 10,000 in case of over-limit public works procurements,
    • 3% of the expected value, but not more than EUR 2,000 in case of below-limit public supply and public service, procurements,
    • 5% of the expected value, but not more than EUR 5,000 in case of below-limit public works procurements,
    • 0,1% of the expected value, but not more than EUR 10,000 in case of concession.
  • Charges after the tender prices have been revealed are as follows:
    • 1% of the bid price, however no more than the above mentioned maximum charges which apply to each type of procedure,
    • in case of abnormally low tenders, 1% of the bid price, minimum EUR 600 and maximum EUR 30,000,
    • maximum EUR 150,000 if other than the above mentioned cases are appealed.
  • In case the charges cannot be calculated either based on the expected or actual bid price, a flat fee of EUR 3,000 shall be charged.
  • The fees for appeals filed with the Board of the Public Procurement Authority against decisions of the Public Procurement Authority are EUR 6,000 in case of appealing the over-limit contracts and concessions and EUR 3,000 for the below-limit contracts.
  • The fees are fully reimbursed to the winning applicant or in the event that the appeal is dismissed for procedural reasons. In case the applicant withdraws its appeal, 65% of the fees are reimbursed to the applicant. In other cases, the fees are retained by the Public Procurement Authority.

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
  • In principle, an appeal has a suspensive effect in terms of the award of the contract.
  • Even in rare cases where it does not, an application for an interim injunction is still possible.

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC
  • Any interested party may, within six months, request a court to declare a contract ineffective (null and void in Slovak terms) if
    • the contract has been awarded without prior publication of the contract notice,
    • if the standstill period has not been adhered to, depriving the tenderer of an efficient review (§181 ZVO).
  • In addition, the Public Procurement Authority shall (even without a request from an interested party), within one year, require a court to declare a contract ineffective (null and void in Slovak terms), if it was awarded in violation of the Public Procurement Act (§ 180 ZVO).
  • The Public Procurement Authority is entitled and obliged to impose fines on contracting authorities and contracting entities for breaches of the Public Procurement Act. For example, in case of direct awards, the fine amounts to 5% of the price and has no upper ceiling.
  • Courts are entitled to award damages for non-compliance with the Public Procurement Act.

Slovenia
By Tomaz Petrovic, CMS Ljubljana
Amended as of April 2016
1. Where can one find public procurement notifications for Slovenia?
Compulsory public procurement notifications are announced in Official Journal of the European Union and on the internet portal of public procurement, available under: www.enarocanje.si. If the value of the public procurement does not equals European threshold value (Art. 22 of Zakon o javnem naročanju (ZJN-3)), notifications are only announced in Slovenia, via the above mentioned internet portal. If the value of the public procurement in general area is lower than EUR 20,000 (for supply and services contracts), lower than EUR 40,000 (for works contracts) or lower than EUR 750,000 (for services contracts as provided by the Annex XIV of the Directive 2014/24/EU and by the Annex XVII of the Directive 2014/25/EU) notifications are not obligatory. On infrastructure area amounts for notification are higher than those applicable in the general area.

On the internet portal all project documentation is announced, with the exception of those parts of the documentation which cannot be posted on the portal due to technical reasons. Furthermore, all possible changes, supplementations and explanations should be posted on the portal.
2. What are the relevant thresholds for the applicability of the National Procurement Law?
  • Public procurements above the European threshold value:

Awarded bySupply contractsServices contractsWorks contractsSocial and other special services contracts
State and local community authority135,000135,0005,225,000750,000
Other authority/authority operating in the field of defence209,000209,0005,225,000750,000

  • Public procurements for which the obligation of public notification exists only in Slovenia:

Awarded bySupply contractsServices contractsWorks contracts
Any contracting authority20,000 – 135,000 or 20,000 – 209,00020,000 – 135,000 or 20,000 – 209,00020,000 – 135,000 or 20,000 – 209,000

  • Public procurements for which public notice is not demanded:

Awarded bySupply contractsServices contractsWorks contracts
Any contracting authority20,00020,00040,000

3. Under which circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
  • For open procedure no special conditions are laid down, therefore the contracting authority is free to choose an open procedure in every case of public procurement.
  • The same conditions apply to restricted procedures in which the contracting authority in a first phase recognizes capacity to perform while in the second phase a call for proposals is made to the tenderers chosen in the first phase. However, the contracting authority is not limited by any provision from choosing either the open or restricted procedure.
  • Negotiated procedures can be used in the form of a competitive negotiated procedure, negotiated procedure with prior publication or as a negotiated procedure without prior publication. The latter public procurement procedure begins in a way that contract entity invites certain business entities, which should fulfil all conditions demanded by contracting entity. Such negotiated procedures can be applied in the event the public procurement in infrastructure area only has a research, experimental or study intent and there is no intention of profit making, in cases when only certain bidder can perform a public procurement due to the unique art work or in cases where there is no competition due to the technical reasons or in cases where exclusive rights shall be excluded. Such circumstances apply for supply, services and works contracts, while the ZJN-3 states also specific reasons for each of the single sort of contract.
  • Negotiated procedure with prior publication can only be used for public procurements in infrastructure area. Every interested business entity can submit their request to participate in the public procurement, together with information supporting the fulfilment of the demanded conditions. However, only business entities that are invited by the contracting authority (based on the assessment of their information given in the first round) can submit their tender. Contracting authority is allowed to restrict the number of bidders.
  • Conditions for use of competitive dialogue are determined in Art. 42 of ZJN-3 where it is stated that competitive dialogue can be used in the event when one of the following conditions is fulfilled: (i) contracting entity’s necessities cannot be achieved without adjustments of existing solutions, (ii) designed or innovative solutions are needed, (iii) due to the complexity or risks the public procurement cannot be submitted without prior negotiations or (iv) technical specifications cannot be decided yet. Competitive dialogue for public procurement in infrastructure area can be used independent of the above mentioned conditions. Only business entities that are invited by contract entity (based on the assessment of their information given in the first round) may participate in the competitive dialogue. The contract is finally awarded only on the basis of the best value for money.

4. Which decisions of a contracting authority can be appealed?
The Legal Protection in Public Procurement Procedures Act (Zakon o pravnem varstvu v postopkih javnega naročanja- ZPVPJN) regulates this area. Legal protection is granted on three different levels: pre-review procedure, review procedure and appeals procedure (judicial procedure).

A review of public procurement award procedure is a two-stage procedure: The first stage procedure is before the contracting authority and the 2nd stage is held before the National Review Commission (DKOM). It should be emphasized that the submission of a review claim does not have an ex lege suspensive effect. Proceedings before the National Review Commission can be initiated only:
  • after an unsuccessful review at first instance before the contracting authority;
  • when the aggrieved party does not consent (partially or entirely) to the decision of the contracting authority on the review claim or
  • if the contracting authority does not reach its decision in due time.

Any decision of the contracting authority which is in violation of legal provisions and significantly impacts or could significantly impact the award of a public procurement contract can be appealed, for example, in instances where:
  • a procurement contract is awarded to a tenderer which is not the most suitable or does not fulfil the conditions stated in the tender fiche;
  • the contracting authority has allowed a change in parts of the offer which could have an impact on the final choice;
  • contract has been awarded without notice on the public portal in violation of ZJN-2 and
  • the bidding period is too short and consequently prevents the preparation of an appropriate tender due to the complexity of the public documentation published by the contracting authority.

A separate revision procedure is envisaged in appeals relating to the tender documentation.

Based on ZPVPJN the interested entity (competitor) or public prosecutor may request a nullity of the respective agreement on the grounds of substantial violations/omissions in the public procurement procedure preceding the agreement, violations of the stand-still period or in case the respective agreement has been entered into under terms and conditions differing substantially from the template provided by the tender documentation, allowing the awarded entity or its affiliates to profit therefrom. Respective risk of annulment/damage claims are not subject to the statute of limitation.
5. What time limits exist for appeals? Are further appeals precluded after the expiry of these limits?
  • This provision is regulated by Art. 25 of ZPVPJN, which distinguishes between two situations. Pre-revision appeals regarding the content of the tender notice, invitation to the offer or tender fiche can be filed within eight working days from the date the tender notice was posted. After this time limit has lapsed, time tenderer can no longer appeal against any breaches which were or should have been known to the tenderer. In case an invitation to the offer was not performed, the time limit for an appeal shall amount to six months from the date the public contract was implemented. The time limit for appeals against decisions of the contracting authority regarding the award of the public contract or recognition of capability, is the same as above, amounting to eight working days following the date of the receipt of the decision concerned.
  • The tenderer must initiate review procedures within three days after receipt of the rejection of the contracting authority. In cases, where the contracting authority does not fails to respond an appeal should be filed within 25 days starting from the date the contracting authority received the complete pre-review claim.

6. How long is the standstill period?
  • The standstill period expires after the time limit for lodging an appeal against the contracting authority’s decision has lapsed. More precisely, the standstill period shall amount to eight business days starting from the date the contracting authority’s decision was communicated to the tenderer.

7. Which review bodies exist?
  • There is only one review body in Slovenia, namely the National Review Commission (Državna revizijska komisija – DKOM). The National Review Commission is the sole authority competent to decide on procurement procedure related claims. There are two types of decisions: it can adopt – a claim can be rejected as unsubstantiated or a claim can be sustained and the procedure in question partially or entirely invalidated.
  • Furthermore, it should also be noted that the National Review Commission only has the competence of an appellate body, i.e. to annul decisions of contracting authorities. However, the Commission can advise a contracting authority on how to implement the procedure regarding the invalidated element. Such advice can be binding on the authority and in case of a breach the Commission can report this to the supervisory body of the contracting authority or to the Government.

8. Are there any filing fees for an appeal?
  • There are three different possibilities with regard to the amount of filing fee to be paid: When the claim for revision relates to the content of the tender notice, invitation to offer or tender fiche, the filing fee shall vary between EUR 1,500 to EUR 7,000, depending on the type of procedure and subject of the contract, in all other cases the filing fee shall amount to 2% of the most suitable offer, but no less than EUR 5,000 and no more than EUR 25,000. In addition, there is a flat fee for some services from List A and some from list B as well as for open competition and contract awarding in dynamic purchasing system amounting to EUR 1,000.

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
  • Without prejudice to filed claims, the contracting authority can continue with the public procurement procedure, however it shall be prohibited from entering into a contract, halting the public procurement procedure, rejecting all received offers or initiating a new public procurement procedure for the same object, with some exceptions e.g. urgent matters etc.

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC
The contract cannot be deemed ineffective by the national review commission but shall be claimed as ineffective in the litigation procedure in front of the court. However, among the breaches that represents the basis for claiming ineffectiveness are also the situations when the contracting authority failed to publish a contract notice on the Public Procurement Portal and/or in the Official Journal of the European Union, although it should have pursuant to the act regulating public procurement and when the contracting authority does not take account of the standstill/grace period in the public contract award procedure. Those two situations are also mentioned in the Article 2d of the Directive 66/2007/EC. Other situations when contract shall be null and void are:
  • the contract is concluded as a consequence of a criminal offence committed by the contracting authority or successful tenderer;
  • the contract is concluded without a prior public contract award procedure when the contracting authority should have carried it;
  • after the submitted review claim, the contracting authority concludes a contract with the successful tenderer;
  • the contract essentially derogates from the draft contract in the tender documentation and the contracting authority or the successful tenderer or his responsible representative, profited therefrom.

In accordance with Art. 111 of ZJN-3, fines varying from EUR 25,000 to EUR 100,000 may be imposed on the contracting authority for 6 different breaches, among which also two breaches mentioned in the Article 2d of the Directive 66/2007/EC are included. Those two breaches covers the situation when the contracting authority has awarded a contract without prior publication of a contract notice in the Official Journal of the European Union and when the contracting authority does not abide by the standstill period. However, a review body cannot establish an ineffectiveness of a contract for such cases. Alternative penalty regarding the shortening of the duration of the contract is not included in the ZJN-3.
Spain
1. Where can one find public procurement notifications for Spain?

2. What are the relevant thresholds for the applicability of the Consolidated Text of the Public Sector Contracts Act? (Texto refundido de la Ley de contratos del Sector Público – TRLCSP)
Minor contracts (Contratos menores) are those which can be awarded to any contractor with legal capacity and who holds the required professional qualification to perform the service. Therefore, the awarding procedures foreseen in the TRLCSP is not applicable.

The relevant thresholds in this respect are EUR 50,000 in relation to works contracts, and EUR 18,000 in respect of any other contract. Below these amounts, contracts are considered as minor contracts, and can be awarded directly.

Please note that VAT is not included.

3. Under which circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
  • (i) (ii) The contracting authority is free to choose among the open and the restricted procedure. Open or restricted procedures may be used irrespective of contract values (Art. 138.2 TRLCSP).
  • (iii) The negotiated procedure can be carried out, according to Art. 170 TRLCSP, in the following cases:
    • in case all tenders submitted in response to an open or restricted procedure or competitive dialogue were irregular or unacceptable provided that the initial contract conditions are not substantially changed;
    • if the supplies, works or services do not allow for a specification of the price due to their nature or associated risks;
    • in case that, following an open or restricted procedure, no offers have been presented, provided that the initial contract conditions are not substantially changed (a report shall be sent in this case to the European Commission if the contract meets certain criteria);
    • if for technical or artistic reasons, or due to a protection of exclusivity rights, the contract can only be awarded to a specific contractor;
    • if urgent and compelling reasons, due to unforeseeable events outside the control of the contracting authority, do not allow the implementation of an open or restricted procedure following the urgent procedure;
    • if the contract has been declared secret or reserved, or when its execution must be accompanied by special safety measures, or if the protection of national essential security interests are involved;
    • Contracts included within the scope of Art. 346 of the Treaty on the Functioning of the European Union.
    Furthermore, Art. 171 to 174 TRLCSP, list several cases related to specific kind of contracts for which the negotiated procedure can be used. Moreover, Art. 175 TRLCSP refers to all other public contracts (i.e., those which are not referred in Art. 171 to 174), allowing the use of the negotiated procedure when the price of the contract is below EUR 100 000.
  • (iv) Competitive dialogue, is only applicable for particularly complex contracts, in case the contracting authority considers that an open or restricted procedure will not allow an adequate award of the contract.

4. Which decisions of a contracting authority can be appealed?
  • All decisions of a contracting authority, except certain procedural actions, can be appealed. This includes:
    • Tender offer notices, tender documents and contracting documents which may establish conditions governing the contracting procedure.
    • Procedural acts/decisions adopted during the contracting procedure, provided that these directly or indirectly decide the awarding, determine the impossibility of continuing the procedure or cause irreparable defenseless or damage to legitimate rights or interests. For instance, an exclusion decision.
    • Contract award decisions adopted by contracting authorities, including any decisions issued by the contracting authority to modify, rescind or determine the effects of the contract, when the effects of the contract are ruled by public law.
  • In certain cases, defined in Art. 40.1 TRLCSP depending on the type and value of the contract, special appeal procedures exists. In all other cases, ordinary appeals are available (Art. 40.5 TRLCSP).
  • The cases in which the special appeals procedure applies, include (Art. 41.1 TRLCSP):
    • Works and works concessions contracts with a value of EUR 5M or higher
    • Supply and services contracts with a value of EUR 130,000 or higher, or EUR 200,000 or higher (depending on the case)
    • Public service management contracts with a value of
      EUR 500,000 or higher and a term of more than five years
  • This special appeals procedure cannot be filed in relation to awarding procedures carried out following an emergency procedure.
  • Following a special appeal or an ordinary appeal, a decision can be appealed to the Courts of Justice, following a contentious-administrative procedure. There is also the possibility of filing a direct appeal with the Courts of Justice following the contentious-administrative procedure, avoiding all administrative (special or not) appeals.

5. What time limits exist for appeals? Are further appeals precluded after these limits?
  • In general, the special appeal on contracting must be filed within 15 working days following the notification of the appealed decision.

    Nevertheless:
    • When the special appeal is filed against the content of the tender documents, the time limit calculation starts on the day following the date on which such documents were received by potential bidders.
    • When a special appeal is filed against procedural acts, or against a decision taken in a negotiated procedure without publication, the time limit calculation starts on the day following the date on which the appellant has had due knowledge of such a decision/act.
    • When a special appeal is filed against a contract award notice, the time limit calculation starts on the day following the date on which such a notice was published.
  • Please be aware that the expression “starts on the day following the date” is misleading in Spanish Law, and that the calculation of these time limits is not as simple as it seems.
  • Whenever the special appeal is not available, the ordinary administrative appeal as stated in Art. 40.5 TRLCSP should be filed within one month from the notification of the appealed decision.
  • The time limit for appealing to the courts following the contentious-administrative procedure is two months from the notification of the appealed decision. As mentioned before, this appeal to the courts can be filed even if a previous administrative appeal (special or not) has not been filed.

6. How long is the standstill period?
  • The standstill period for contracts in relation to which a special appeal can be filed, shall amount to 15 working days from the date the award notice has been submitted to bidders and selected tenders, according to Art. 156.3 TRLCSP.
  • In the remaining cases, in which a special appeal cannot be filed, the contract must be formalized within 15 working days from the date the award notice was received.

7. Which review bodies exist?
  • Special appeal on contracting:
    • State level: a specialized public procurement body: the Central Administrative Court on Procurement Appeals (Tribunal Administrativo Central de Recursos Contractuales)
    • Autonomous Region level: a specific public procurement body for every autonomous region.
    • Local level: the autonomous region in which the specific local corporation is located may establish the competent authority. If this is not the case, the autonomous region public procurement body shall be competent.
  • Ordinary administrative appeal: the contracting authority.
  • Contentious-administrative appeals to courts: in case the contracting authority is considered a public administration, a contentious-administrative appeal can be filed. The competent court will depend on the public nature of such public administration.

8. Are there any filing fees for an appeal?
  • In principal, no fees are charged for administrative appeals made under the TRLCSP or for ordinary appeals,. However, an autonomous region, has recently established a filing fee in this respect.
  • In case the appeal is taken to court, filing fees shall apply. Discounts or exemptions may be applicable in some cases.

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
  • The filing of a special appeal on contracting, when challenging an awarding decision has a suspensive effect in relation to the tender procedure, according to Art. 45 TRLCSP.
  • In any other case, if the appealed decision or resolution does not concern the award of the contract, in case of an ordinary administrative appeal, or an appeal to the courts, interim measures can be applied for.

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC
  • If a preparatory act of a contract, or the awarding of the contract is declared as null, by means of a definitive and final decision, such nullity will determine the invalidity of the contract itself, according to Art. 35 TRLCSP. The contract will enter into a settlement stage, in which each party must return every benefit received by virtue thereof.
  • The competent bodies may, in light of exceptional circumstances, or for reasons of overriding public interest, (Art. 38 TRLCSP) refrain from declaring a contract ineffective, and agree to maintain the contract it, due to. If this is the case, the declaration of nullity must be substituted by one of the following alternatives:
    • The imposition of fines on the contracting entity, amounting to 5% to 20% of the awarding price of the contract.
    • The shortening of the duration of the contract, together with a corresponding compensation in favor of the contractor.
  • Moreover, disciplinary sanctions can be imposed on the party responsible for the legal violations.

Switzerland
By Alain Raemy and Marquard Christen, CMS Zurich
Preliminary Remarks on the Legal Framework in Switzerland
The Swiss Confederation and the 26 cantons each have the power to enact their own public procurement legislation for public procurements by entities on a national and cantonal/municipal level within the framework provided by international and national law. Thus, public procurement in Switzerland is regulated on three levels:
  • International level: the WTO Agreement on Government Procurement (GPA), the bilateral Agreement between the European Community and the Swiss Confederation on certain Aspects of Government Procurement (EU-CH Agreement) and the EFTA Convention (Annex R). The EU-CH Agreement and the EFTA Convention extend the ambit of the GPA to municipalities and to additional sectors not mentioned in the GPA.
  • National level: the Federal Act on Public Procurement (FAPP) and the Ordinance on Public Procurement (OPP).
  • Cantonal and municipal level: the Intercantonal Agreement on Public Procurement (IAPP) and the Federal Act on the Internal Market (FAIM) provide the legal framework for legislation by the 26 cantons (for an overview of the legislation in the cantons see link).

Public procurements falling within the ambit of the international treaties are generally referred to as public procurements in the international treaty area. National and cantonal law contains specific rules for these public procurements which implement Switzerland‘s obligations under these treaties. Both national and cantonal legislation also contain provisions for public procurements outside the international treaty area, i.e. for public procurements (i) below the thresholds set by international law, (ii) by other procuring entities than the ones listed in the international treaties and (iii) for goods and services which are not listed in the international treaties. Please note that there are no (federal level) or only limited remedies (cantonal and municipal level) available to bidders with regard to public procurements outside the scope of the international treaties.
1. Where can one find public procurement notifications for Switzerland?

2. What are the relevant thresholds for the applicability of federal and cantonal procurement law?
Thresholds applicable on the federal level in the international treaty area (in Swiss francs):

Awarded bySupplies (goods)ServicesWorks (construction services)
Central government authorities (see list in Annex 1 of Appendix I of the GPA)230,000230,0008,700,000
Additional public and private procuring entities in the sectors water and energy supply as well as transportation (see list in Annex 1 of Appendix I of the GPA; exemption applies to railway freight transportation).700,000700,0008,700,000

Outside the ambit of the international treaties a different set of federal rules applies regardless of any thresholds (see Articles 32 ss. OPP). However, thresholds may be relevant for the determination of the applicable procurement procedure.

Thresholds applicable on the cantonal and municipal level in the international treaty area (in Swiss francs):

  • GPA


  • Awarded bySupplies (goods)ServicesWorks (construction services)
    Cantons and entities governed by public law350,000350,0008,700,000
    Authorities and public companies in the sectors water, energy, transport and telecommunication700,000700,0008,700,000

.
  • EU-CH Agreement and EFTA Convention (additional thresholds)


  • Awarded bySupplies (goods)ServicesWorks (construction services)
    Municipalities350,000350,0008,700,000
    Private companies with exclusive or special rights in the sectors water, energy and transportation700,000700,0008,700,000
    Public as well as private companies with special or exclusive rights in the the sectors railway transportation as well as gas or heat supply640,000640,000 8,000,000

  • Outside the ambit of the international treaties a different set of cantonal rules applies regardless of any thresholds. However, currently the following minimal thresholds determine the procurement procedures to be applied (in Swiss francs):

  • Works (construction services)
    Type of procedureSupplies (goods)ServicesAncillary construction trades („Bauneben-gewerbe“)Main construction trades („Bauhaupt-gewerbe“)
    Direct awardbelow 100,000below 150,000below 150,000below 300,000
    Invitation procedurebelow 250,000below 250,000below 250,000below 500,000
    Open/restricted procedurefrom 250,000from 250,000from 250,000from 500,000

Please note that the cantons are free to stipulate lower thresholds
3. Under which circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
In Switzerland, the following main procurement procedures exist:
  • Open procedure („offenes Verfahren”): All interested providers/suppliers may submit a tender after the planned procurement has been published (Art. 14 FAPP; Art. 12 I a IAPP).
  • Selective procedure (two-step procedure; „selektives Verfahren”): All interested providers/suppliers first submit their request to participate in the procurement procedure before the procuring entity decides, based on previously published qualitative selection criteria, which providers/suppliers it wants to invite to submit a tender (Art. 15 FAPP and Art. 12 OPP; Art. 12 I b IAPP).
  • Invitation procedure („Einladungsverfahren”): The procuring entity chooses a certain amount of providers/suppliers which shall be invited to submit a tender without prior publication of the planned procurement (Art. 35 OPP; Art. 12 I lit. bbis IAPP).
  • Limited procedure („freihändiges Verfahren”): The procuring entity directly awards the contract to the provider/supplier of its choice (Art. 16 FAPP and Art. 13 and 36 OPP; Art. 12 I lit. c IAPP).
  • Federal level: In the international treaty area, the procuring entity is free to choose between the open and the selective procedure (Art. 13 I FAPP). The limited procedure may only be used if certain requirements are fulfilled (examples: no tenders have been submitted in the open or selective procedure, due to technical reasons only one provider/supplier is in the position to provide the required goods or due to an unforeseeable event the procurement is of such urgency that there is no time for an open or selective procedure; Art. 13 I FAPP and Art. 13 OPP). Outside the international treaty area, the procuring entity may also use the invitation procedure (Art. 35 OPP) and the scope of application of the limited procedure is wider (Art. 36 OPP).
  • Cantonal and municipal level: See answer to question 2 above.
  • A negotiation procedure does not exist in Switzerland. On a cantonal and municipal level, negotiations in public procurement proceedings are not permitted (except, of course, in the limited procedure). On a federal level, negotiations are permitted in the context of all procedures if (i) reference to negotiations is made in the tender notice and (ii) none of the bids submitted appears to be the most commercially advantageous (Art. 20 FAPP and Article 26 OPP).
  • The dialogue exists in Switzerland in so far as it has been introduced in 2010 on the federal level as an element of the public procurement procedure. It may be applied – if explicitly mentioned in the tender notice – in the context of complex procurements or procurements regarding intellectual services in order to further develop approaches and courses of action suggested by bidders (Art. 26a OPP). In addition, a so-called planning and global solution competition (“Planungs- und Gesamtleistungswettbewerb”) exists which allows the procuring entity to evaluate different alternatives beforehand in order to then formulate the tender notice and procure the goods or services in one of the procedures described above (Art. 40 ss. OPP).

4. Which decisions of a contracting authority can be appealed?
  • There is no exclusive list of decisions which can be appealed.
  • On a federal level, Art. 29 FAPP contains the following non-exclusive list of decisions which can be appealed, provided that the procurement falls within the scope of international treaties: The award of the contract, the discontinuation of the award procedure, the invitation to tender, the decision on the selection of participants in the selective procedure, the exclusion of a bidder from the procedure and the decision on registration of a provider/supplier under the terms of Art. 10 FAPP. Please note that there are no appeals on the federal level against decisions regarding public procurements which do not fall within the ambit of international treaties (Art. 39 OPP).
  • On a cantonal level, in principle, all decisions of a contracting authority both within and outside the international treaty area can be appealed (Art. 15 I IAPP and Art.9 II FAIM). Art. 15 Ibis IAPP contains a (non-exclusive) list of appealable decisions similar to the one in Art. 29 FAPP on the federal level.

5. What are the time limits for appeals? Are further appeals precluded after the expiry of these limits?
  • A decision of a federal authority must be appealed within 20 days following publication of the decision or, if earlier, notification of the decision to the respective party (Art. 30 FAPP). On the cantonal level, the time limit is restricted to ten days (Art. 15 II IAPP). Appeals against decisions of the federal and cantonal review bodies to the Federal Supreme Court must be filed within 30 days (Art. 100 Federal Supreme Court Act).
  • Further appeals are precluded after these time limits.

6. How long is the standstill period?
  • A contracting authority may not award the contract until the time limit for an appeal has not expired (see answer to question 5 above) or, if an appeal has been filed, until the review body has decided whether to grant interim relief or not (Art. 22 FAPP; Art. 14 I IAPP).

7. Which review bodies exist?
  • Federal level: Federal Administrative Court (Art. 27 FAPP).
  • Cantonal level: Each canton must provide for at least one independent review body (usually the administrative court of the respective canton; Art. 15 I IAPP and Art. 9 II FAIM).
  • Decisions of both the Federal Administrative Court and the cantonal review bodies may be appealed to the Federal Supreme Court if the estimated contract value exceeds the applicable threshold under the FAPP or EU-CH Agreement and a legal question of fundamental importance arises (Art. 82 s. Federal Supreme Court Act).

8. Are there any filing fees for an appeal?
  • On a federal level: Filing fees for an appeal depend on the (estimated) contract value and vary between 200 and 50,000 Swiss francs (Federal Administrative Court) or between 200 and 100,000 Swiss francs (Federal Supreme Court). The filing fees will be reimbursed if the appellant succeeds.
  • On a cantonal level, filing fees for an appeal vary from canton to canton.

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
  • An appeal does not have an automatic suspensive effect. Interim measures must be applied for (Art. 28 FAPP and 17 IAPP). On a cantonal level, Art. 17 II IAPP provides for the possibility of a court to grant interim relief ex officio which however, in practice, is hardly ever granted.

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC
  • It is disputed in Switzerland whether a contract which has been concluded in violation of procurement law (i) is void or must be cancelled or terminated or (ii) whether the review body may only declare its invalidity and award damages (Art. 32 FAPP; Art. 9 III FAIM and Art. 18 II IAPP). Damages on a federal level are limited to the amount of costs incurred by the tenderer in connection with the award procedure and appeal proceedings (Art. 34 III FAPP).

Turkey
By Can Gafuroglu and Dogukan Berk Aksoy, CMS Istanbul
Amended as of April 2016
1. Where can one find public procurement notifications for Turkey?
  • All tender notifications and related tender documents are accessible online through the Electronic Public Procurement Platform (“EPPP”) https://ekap.kik.gov.tr/EKAP/Ortak/IhaleArama2_D.aspx (tender search engine), which is located under the Public Procurement Authority (“PPA”) web page http://www.ihale.gov.tr/.
  • Public Procurement Bulletin (“PPB”) (and its archive) is online available at: https://ekap.kik.gov.tr/EKAP/Ilan/BultenIndirme.aspx (bulletin search engine). The Bulletin is issued daily. Depending on the issue, it renders information regarding pre-announcement; announcement; correction or cancellation of a tender. Awarded tenders, within a brief summary are listed in the PPB, as well. Apart from this compulsory content, if requested by the relevant contracting authority, announcements, corrections, termination or winning bidder information are also available in the PPB, in regard to tenders: – launched by the administrations, which are not in scope of the Public Procurement Law (“PPL”); – launched by the administrations, which are in scope of the PPL but procuring in respect of the “exceptions” stipulated under the PPL or procurements of such administrations, which are not falling the tender scopes of the PPL; -launched by the private legal entities, which are established by a special law or by way of a by-laws rendered by the Council of Ministers.
  • Alternatively, notifications can be obtained in hardcopy from the contracting authority. The contracting authorities also publish tender notices on their websites.
  • The tender search engine and the bulletin search engine are only available in Turkish. Under the PPA’s web page, general announcements (i.e. press releases, legislative amendments etc.), related legislation, statistics and information relating to the administrative authority are available in English.

2. Which are the relevant thresholds for the applicability of the PPL in Turkey?
  • Turkey is not yet a member state and not subject to EU directives, but in respect of the pre-accession phase, a similar threshold mechanism as provided under the EU Directives are designed and amended for supply, service and work contracts which are in scope of the PPL.
  • The different thresholds are stipulated based on the type of procurement and legal structure of the authorities. In principle, the thresholds are determined to (i) specify the notification periods and (ii) support local tenderers in respect of the fee advantage, if any, and impose restrictions to a foreign tenderer to participate in a tender.
  • In connection with the above given, the contracting authority, with its discretion may restrict the “participation” of foreign (non-domestic) bidders, only if the estimated cost of the tender is below the referenced thresholds.
  • The thresholds are applied in accordance with the estimated costs.
  • Estimated Costs: The contracting authority shall conduct all necessary price research and shall determine an estimated cost excluding the value added tax. Estimated costs shall not be stated in tender or prequalification advertisements, and shall not be explained to tenderers or to the others who do not have any formal relationship with the tender proceedings.
  • Contracting authority provides tenderers with a notice period to get prepared for the submission of the tenders. The notice periods and the relevant data for publication differs depending on the estimated costs of the contract.

  • Contracting Authorities InvolvedScopeThresholds for the period between 1 Feb 2016 – 31 Jan 2017 (in TRY)
    Thresholds (“T”)
    Central government authorities and central public institutionsSupply and Service976,465 (Approx. EUR 303,111)
    Other government authorities (local government authorities, local public institutions, other institutions operating under a central government authorities, etc.) which falls under the scope of the PPLSupply and Service1,627,445 (Approx. EUR 505,186)
    All administrative authorities which fall under the scope of PPLWorks35,804,003 (Approx. EUR 11,114,200)


  • The notices periods are determined in accordance with the thresholds and the tender procedures and types. The chart, indicating the related notice periods for the contracting authorities:

  • Procedure/Type of the TenderThe Limits Applied to the Estimated Costs (“EC”)The Announcement Requirements Prior to the Launching Date of the Tender
    IF EC ≥ T
    OpenN/A(*)Forty (40) days – Published in the PPB, at least one (1) time
    RestrictedN/A(**)Fourteen (14) days – Published in the PPB, at least one (1) time
    NegotiatedN/ATwenty five (25) days – Published in the PPB, at least one (1) time
    IF EC < T
    Supply and ServiceUP TO TRY 106,531Seven (7) days – Published in the PPB and at least two (2) local newspapers, where the tender and works take place
    WorksUP TO TRY 213,072Seven (7) days – Published in the PPB and at least two (2) local newspapers, where the tender and works take place
    Supply and ServiceBETWEEN TRY 106,531 and 213,072Fourteen (14) days – Published in the PPB and at least one (1) local newspapers, where the works take place
    WorksBETWEEN TRY 213,072 and 1,775,686Fourteen (14) days – Published in the PPB and at least one (1) local newspapers, where the works take place
    Supply and ServiceABOVE TRY 213,072Twenty one (21) days – Published in the PPB and at least one (1) local newspapers, where the works take place
    WorksABOVE TRY 1,775,686Twenty one (21) days – Published in the PPB and at least one (1) local newspapers, where the works take place


  • (*) Forty (40) days period shall be shortened by: (i) seven (7) days if, the announcement is prepared and send electronically, and additionally (ii) five (5) days if, the announcement is duly obtained from the EPPP; which are in total limiting the forty (40) days period to twenty eight (28) days.
  • (**) An invitation letter must be send to the pre-qualified tenderers, forty (40) days prior to the date of the tender. This forty (40) days period shall be shortened by five (5) days, if pre-qualification documents are duly obtained by the tenderers from the EPPP.

3. Under which circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
  • Under the PPL, there are three (3) procedures applicable to the tenders. These are, open, restricted and negotiated procedures. In principle, open procedure is applied to all public tenders.
  • Restricted procedure: Only the tenderers who are invited following pre-qualification by the contracting authority, can submit their tenders.
  • Negotiated procedure: Exceptional procedure with and without a publication of a tender. Applied only in, additionally to the below chart, certain conditions. Especially, if no bid is submitted under open or restricted tender procedures, negotiated procedure shall apply to works, goods or services to be procured. Prices can be negotiated following the submission of price offers.
  • The procedures are applied based on following conditions:
    • If it is not possible to define the technical and financial aspects clearly due to specific and complex characteristics of the works, goods or services to be procured; and/or
    • If the estimated costs of the procurement regarding works is higher than half of the threshold value

  • Contracting authorities shall apply the negotiated procedure, subject to certain publication requirements of a tender.
    • With prior publication:
      • In case that no bid is submitted under open or restricted procedure tenders;
      • In event that a research and development (R&D) is a necessity and the tender scope is not subject to a mass production;
      • In cases where prior overall technical and financial analysis is not possible under supply, service and work contracts due to its complex nature.
    • Without prior publication:
      • In case that there is an extreme urgency brought about by events which the contracting authorities could not have foreseen and which can in no way be attributed to them; or by concerning of the national defense, security and intelligence;
      • In the event that the estimated cost for the product, good, supply and service procurements are up to TRY 177,556 (Approx. EUR 55,486)
  • In addition to the above procedures, the contracting authorities may organize a “design contest”, apply “special procedure for procurement of consultancy services” and without a publication procedure and a security condition, procure a “direct purchase”, provided that the certain conditions are fulfilled.
  • It should be noted that, direct (purchase) procurement is not typical procurement procedure, but it is a procurement method which allows contracting authorities to procure its requirements, that are falling under the following thresholds:

  • Location of the contracting authorityEstimated Value of Services, Supplies, Works
    Within the boundaries of metropolitan municipalitiesTRY 53,261 (Approx. EUR 16,120)
    Outside the boundaries of metropolitan municipalitiesTRY 17,744 (Approx. EUR 5,370)


  • Please note that as of the date of this guide, 30 out of 81 cities in Turkey are governed by metropolitan municipalities. The respective thresholds are subject to a slight increase each year in accordance with the communiqué published each year based on the data provided by Turkish Statistic Institution.
  • Moreover, to comply with the EU directives framework agreement, dynamic purchase, electronic auction and electronic notification concepts are applied under the PPL, as well.

4. Which decisions of a contracting authority can be appealed?
  • Briefly the appeal under PPL is “complaint (to the contracting authority)” and “objection (to the PPA)” mechanisms. The candidate/participant must submit a complaint petition, accordingly, based on the reply or non-reply of the contracting authority within a certain period, an objection application shall be filed to the PPA.
  • In order to be eligible to file an administrative lawsuit relating to the tender or in connection with the contract, this appeal phase must be exhausted.
  • Any procedure or action of the contracting authority under the procurement process can be appealed by the candidates, tenderers or potential tenderers who claim that they have suffered a loss of right or damage or likely to suffer a loss of right or damage due to unlawful procedures or actions.

5. Which time limits exist for appeals? Are further appeals precluded after these limits?
  • The Complaint: The time limit for appeal is five (5) days for the tenders, which are procured (i) under extremely urgent and unforeseeable conditions (i.e. disaster, disease etc.) and (ii) with the concern of the national defense, security and intelligence matters. Other than these two tenders, the limit for appeal is ten (10) days for all tender, starting following the date which the unlawful procedure or action of the contracting authority has been realized or must have been realized by the applicant.
  • The complaints regarding the procurement notice shall start from the date on which the notice is first published, while the period for applications regarding the other provisions of prequalification or tender documents which are not reflected in the procurement notice, shall start from the purchasing date of the related document.
  • The complaints regarding the procurement notice, prequalification or tender documents shall be submitted latest until three (3) days before the date of the tender or application deadline provided that time limits do not exceed the time limits stated above (in the first paragraph).
  • The Objection: Upon completion of the complaint phase, the applicant may challenge the contracting authority’s decision within five (5) days before the PPA.
  • Further appeals (initiating an administrative lawsuit and related judicial proceedings) are precluded after the expiry of the abovementioned limits.

6. How long is the standstill period?
  • There is a standstill period of :
    • No less than five (5) days, from the day on which the information on the selection of the winning bidder was sent, provided that the procurement completed in a short span of time due to the extremely urgent and unforeseeable conditions and national security matters; and
    • No less than ten (10) days, from the day which the information on the selection of the winning bidder was sent.
  • In practice, the period commencing from the contracting authority to award the tender and to sign the contract with the winner/contractor is at most thirty five (35) days for the local contractors. For the foreign contractors, additional twenty four (24) days shall be applicable.

7. Which are the review bodies?
  • The review authorities, in the order of respective application process, are as follows:
    • The contracting authority itself, for the complaints and the PPA for the objections.
    • First instance court: Administrative courts handles the lawsuits about procurement process as the first instance court upon the decisions of the PPA.
    • Supreme Court: The Council of State examines the final decisions of the administrative courts, and concludes the appeal applications as the Supreme Court.
  • An accelerated procedure is stipulated for the disputes related to the public procurement. Accordingly, the final decision of the administrative courts are appealable without requiring an application to be made before the district administrative court, which normally acts as the second instance court in administrative procedure. Nevertheless, as an exception, the decisions of administrative courts regarding the prohibition from participation in procurements can only be appealed after first applying to district administrative courts and obtaining a final decision from such district administrative courts.

8. Are there filing fees for an appeal?
  • There is no filing fee stipulated for the complaints to be made to the contracting authority itself.
  • The filing fee of the objection depends on the estimated costs of the procurements:
    • TRY 3,372 for the procurements with estimated costs of up to TRY 562,165;
    • TRY 6,745 for the procurements with estimated costs between TRY 562,165.00 to TRY 2,248,663;
    • TRY 10,118 for the procurements with estimated costs between TRY 2,248,663 to TRY 16,864,973;
    • TRY 13,491 for the procurements with estimated costs of TRY 16,864,973 and above.
  • Application fee for the lawsuit at the administrative courts is TRY 29.20.
  • Application fee for the appeal at the Council at State is TRY 143.50.

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
  • The complaint or objection applications do not have a suspensive effect. An application for an interim injunction at the administrative courts is necessary and has a suspensive effect.
  • However, unless the PPA has given its final decision about the objection, the contract cannot be signed by the contracting authority.

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC
  • As stressed above, Turkey is not yet an EU member state, referenced directive is not applicable as of the date of the note.

Ukraine
By Maria Orlyk, Olexander Martinenko and Olga Belyakova, CMS Kyiv
Amended as of April 2016
1. Where can one find public procurement notifications for Ukraine?
2. What are the relevant thresholds for the applicability of Ukrainian Law on Public Procurement?
Awarded bySupply and service contractsWork contracts
Any public contractors except for the specific contractors as referred belowUAH 200,000 (approx. EUR 7,0009)UAH 1,5m (approx. EUR 52,500)
Specific contractors (as listed in Art. 1(1)(4) of the Ukrainian Law on Public Procurement)UAH 1m (approx. EUR 35,000)UAH 5m (approx. EUR 175,400)


There is a specific list of goods and services exempt from the procurement procedures. Such goods and services include those concerning state secrets, the design and manufacturing of banknotes, state awards and other types of paper containing security features, services required for banking operations of state banks and banks in which the state owns shares, goods and services consumed by customer outside Ukraine (e.g., a diplomatic mission), services required for the operation, maintenance and repayment of state debt, goods and services required for running elections and referendums, electrical energy, etc.
3. Under which circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
  • The Ukrainian Law on Public Procurement provides for the following tender procedures:
    • open procedure;
    • negotiated procedure;
    • competitive dialogue.

Open procedure is set forth as the primary procurement procedure.

A negotiated procedure can be carried out only in exceptional cases (Art. 35 of Ukrainian Law on Public Procurement):
  • in cases of procurement of pieces of art or procurement connected with the protection of IP rights or the conclusion of contract with the winner of architecture or art competition;
  • if there is no competition on the relevant market and, as a result, the contract may be concluded only with the one contractor;
  • if urgent and compelling reasons do not allow the implementation of an open procedure (reasons connected with the elimination of the results of emergencies or providing humanitarian aid by Ukraine to other countries)
  • if the open procedure was cancelled twice due to the lack of participants;
  • if it is necessary to conclude a contract with the same supplier in order to ensure unification, standardization or compatibility with the prior purchased goods, technologies, works or services;
  • if the additional construction works (not mentioned in the prior project) need to be performed (subject to certain conditions);
  • in cases of procurement of legal services connected with the protection of rights of Ukraine.

A competitive dialogue may only be used subject to the following conditions (Art. 33 of Ukrainian Law on Public Procurement):
  • a contracting authority is not able to determine the required technical or quality specifications of works or type of services and negotiations with participants are required; and
  • the subject of procurement is consulting or legal services, development of information systems, IT products, scientific research, experiments and developments, performance of research and construction works.

4. Which decisions of a contracting authority can be appealed?
  • An appeal is possible against any decisions, acts or omissions of the contracting authority that are in breach of local public procurement laws.

5. What time limits exist for appeals? Are further appeals precluded after the expiry of these limits?
Administrative review procedure:
  • Review of tender documents or decisions or actions of the contracting authority (until the date when the tender bid must be submitted):
    • Any time after the tender documents are officially published but no later than four days before the date when the tender bid must be submitted;
  • Review of decisions or actions of the contracting authority after estimation of bids:
    • ten days with effect from the day on which the contracting authority has published the notification on intention to conclude a contract but before the conclusion of the procurement contract;
  • Review of decisions or actions of the contracting authority after consideration of bids with respect to fulfillment of technical requirements and in accordance with qualification criteria:
    • five days with effect from the day on which the contracting authority has published the protocol of bids consideration;
  • Note: Administrative review procedure does not apply to concluded contracts which can only be appealed in court.
  • Judicial review procedure:
  • Three years with effect from the day on which the appellant became aware or could have become aware of a breach of its rights during the procurement procedure.
  • Note: In practice, court appeals usually concern procurement contracts which are already concluded (which cannot be appealed in the course of an administrative procedure). By law, however, any step of the procurement procedure can be appealed directly before the court, thus bypassing the administrative procedure.

6. How long is the standstill period?
  • The duration of the standstill period varies depending on the type of procurement procedure:
    • for open procedures: a minimum of ten and a maximum of 20 days starting from the day when a notification on intention to conclude procurement contract is published;
    • for negotiated procedures: a minimum of ten days (in some cases – five days) starting from the day when a notification on intention to conclude procurement contract is published.

7. Which review bodies exist?
  • Administrative review: Anti-Monopoly Committee of Ukraine (national competition authority)
  • Judicial review: Local commercial courts (for appeals against the procurement procedure or procurement contract).

8. Are there any filing fees for an appeal?
  • Fees paid for an administrative review:
    • UAH 5,000 (around EUR 175) for claims with respect to procurement of goods or services;
    • UAH 15,000 (around EUR 525) for claims with respect to procurement of works
  • Fees paid for a judicial review:
    • statutory minimum monthly wage (currently around EUR 50)

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
  • Administrative review procedures do not have an automatic suspensive effect. The review body may, at its own discretion or at the request of the appellant, decide to suspend the procedure. In any event a conclusion of the procurement contract is prohibited pending the outcome of the review procedure.

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC
Dir 66/2007/EC does not apply to public procurements in Ukraine.

Under Ukrainian Law on Public Procurement, a procurement contract is automatically ineffective (void) if it is concluded (i) on terms different from those set forth in the tender documents; (ii) during the appeals procedure; (iii) in breach of the statutory time limits stipulated for certain steps of the procurement process under local procurement law (except if these time limits were not met in connection with the review procedure). The procurement contract can also be invalidated by the court on general grounds provided for under the applicable law on the invalidation of the contracts. Persons harmed by infringements of the procurement procedure are not prevented from claiming compensation from the contracting authority (claim of damages is possible only within the court review procedure).
United Kingdom
Amended as of June 2017
By Graeme Young and Rachel Bickler, CMS London
The rules below apply only to public procurement contracts in England, Wales and Northern Ireland. Different rules apply to public procurements in Scotland (see out separate e-Guide for Scotland).
1. Where can one find public procurement contract notifications for the UK?
All UK public procurement contract notices can be found on Tenders Electronic Daily (ted.europa.eu).
All procurement opportunities including procurements with values below the EU thresholds must also be published on UK public sector website Contracts Finder*, at https://www.gov.uk/contracts-finder). In addition, Wales has its own dedicated website ‘Sell2 Wales’ at https://www.sell2wales.gov.wales. In Northern Ireland the website is ‘eSourcing NI’ at: https://e-sourcingni.bravosolution.co.uk).
*(Scotland also has its own dedicated public procurement website).
2. What are the current thresholds for the applicability of the Public Contracts Regulations?
The Public Contracts Regulations 2015 (PCR 2015) require competitive processes to be followed for contracts with estimated values exceeding the EU thresholds (unless any relevant exclusions or exceptions apply).
The current EU thresholds are:
ServicesSuppliesWorks
Central government bodies
(Schedule 1 PCR 2015)
GBP 106,047
(EUR 135,000)
GBP 106,047
(EUR 135,000)
GBP 4,104,394
(EUR 5,225,000)
Other public bodiesGBP 164,176
(EUR 209,000)
GBP 164,176
(EUR 209,000)
GBP 4,104,394
(EUR 5,225,000)

with the exception of certain social and other specified services in Schedule 3 of the PCR 2015, which have a threshold of GBP 589,148 (EUR 750,000), including (among others):
  • health, social and related services;
  • benefit services;
  • investigation and security services; and
  • certain legal services.

The thresholds are reset in domestic currencies every two years.
Below-threshold procurements
Part 4 of the PCR 2015 applies to certain below-threshold contracts in the UK (other than Scotland which operates under separate legislation) which are not governed by the Directive 2014/24/EU. These are designed to provide greater access to public contracts for small and medium-sized enterprises. These rules require contracting authorities to advertise contracts (subject to certain exceptions) on Contracts Finder (including low value contracts) where the value is:
  • GBP 10,000 or more net of VAT, for central government departments and agencies; and
  • GBP 25,000 or more, net of VAT, for local authorities, NHS Trusts and other sub-central government bodies.

3. Under which circumstances can one use the: (i) open procedure, (ii) restricted procedure, (iii) competitive procedure with negotiation, (iv) competitive dialogue procedure, and (v) innovation partnership procedure?
The open and restricted procedures are generally preferred for more straightforward (and often recurrent) procurements, where no negotiation is required (and is not permitted). The competitive procedure with negotiation and competitive dialogue procedure are used in more complex procurements. The innovation partnership procedure is used where there is a need to develop a new and innovative product not currently provided for in the market.
  • Open Procedure – Regulation 27
    This procedure must be open to all interested parties and there is no initial selection stage, with tenders invited, evaluated and an award decision reached. Generally suitable only for the most straightforward procurements where the contract specification is clear and can be priced, with no need to negotiate with bidders.
  • Restricted Procedure – Regulation 28
    All interested parties can submit an expression of interest in response to a call for competition (OJEU contract notice), but only those meeting the pre-qualification or selection criteria will be invited to submit a tender. The initial selection stage must be conducted using a standard Selection Questionnaire. This two-stage procedure allows authorities to limit the number of candidates that will be invited to tender to a minimum of five, assuming that five or more candidates satisfy the minimum pre-qualification requirements. No negotiations with bidders are permitted at the invitation to tender (ITT) stage.
  • Competitive Procedure with Negotiation (CPN) Procedure – Regulation 29
    Reserved for more complex contracts, this procedure involves an initial selection or pre-qualification stage using a standard Selection Questionnaire, after which a minimum of three eligible candidates are invited to negotiate the contract. Authorities are required to negotiate the contract on the basis of an initial tender (unless they have reserved the right in the contract notice to award the contract on the basis of the initial tenders). No negotiations are permitted on the minimum requirements or the award criteria. The negotiation phase may be conducted in successive stages to reduce the number of tenders (provided this was provided for in the OJEU contract notice). The authority must not conduct any further negotiations with bidders following submission of final tenders.
  • Competitive Dialogue (CD) Procedure – Regulation 30
    This procedure is also reserved for more complex contracts and involves an initial selection or pre-qualification stage using a standard Selection Questionnaire, after which a minimum of three eligible candidates are invited to participate in dialogue. Dialogue generally takes place over successive stages and involves a reduction in the proposed solutions. Once the authority is satisfied it has at least one solution capable of meeting its needs and requirements, it can close the dialogue phase and invite final tenders from the remaining bidders. Any negotiation and finalisation of the terms of the contract must not involve changes to the essential aspects of the tender or the procurement, including the authority’s needs and requirements, where such changes are likely to distort competition or cause discrimination.
  • Innovation Partnership Procedure – Regulation 31
    This procedure is intended for the situation where there is a need for the development of an innovative product or service or innovative works not already available on the market. It allows authorities to establish a long-term innovation partnership for the development and subsequent purchase of a new, innovative product, service or works without the need for a separate procurement procedure once the product, service or work has been developed.
  • Negotiated procedure without prior publication – Regulation 32
    In limited circumstances, authorities may award contracts without the need to advertise them to the market, where no tenders or suitable tenders have been submitted, where only a particular operator can meet the authority’s demands or where there is extreme urgency.

Under Regulation 26(4) of the PCR 2015, the use of both the CPN and CD procedure is only available to authorities where:
  • the needs of the authority cannot be met without adaptation of readily available solutions;
  • the works, supplies or services required include design or innovative solutions;
  • the contract cannot be awarded without prior negotiations because of specified circumstances related to the nature or complexity of the works, supplies or services or the legal and financial make-up or because of the risks attaching to any of them;
  • the technical specifications of the works, supplies or services cannot be established with sufficient precision by the authority with reference to a standard, European Technical Assessment, common technical specification or technical reference; or
  • in response to an open or restricted procedure only irregular or unacceptable tenders are submitted.

The above exceptions are likely to be narrowly construed.
4. Which decisions of a contracting authority can be appealed?
Any decision by an authority can be challenged if it can be considered to amount to an actionable breach of the authority’s duties to a bidder or other economic operator (see Regulations 89 and 90 of the PCR 2015). Such a breach is only actionable where the bidder or other economic operator can show it has suffered, or risks suffering, loss or damage as a consequence of the breach (see Regulation 91 of the PCR 2015).
As contracting authorities are public bodies acting in pursuit of a public function it may be possible to challenge decisions by way of judicial review. Judicial review actions will, however, not be competent where a right of action exists under the PCR 2015 and any challenger will be required to show they have standing.
5. What are the time limits for appeals? Are further appeals precluded after the expiry of these time limits?
The general time limit for bringing proceedings is 30 days running from the date when the economic operator ‘first knew or ought to have known that grounds for starting the proceedings had arisen’. The Court has the discretion to extend the time limits where it considers there is a good reason to do so provided that period does not exceed 3 months from the date of 'first knowledge' (see Regulation 92(5) of the PCR 2015).
Separate time limits for the bringing proceedings apply where seeking an ineffectiveness order (see Regulation 93 of the PCR 2015):

  • 30 days from the date of publication of a valid OJEU contract award notice or otherwise the date the authority sends a contract award decision notice to all unsuccessful bidders and any candidates not already informed of their disqualification; or
  • in any other case, six months from the date of the contract being entered into.

6. How long is the standstill period?
Under Regulation 87 of the PCR 2015, the issuing of award decision letters (containing certain prescribed information) to all unsuccessful bidders triggers a standstill period that must be at least ten calendar days (where communication of the letter is by electronic means). Only after this period has elapsed may the authority enter into the contract with the successful bidder.
7. Which review bodies exist?
Proceedings for breach of a duty owed to an economic operator under the PCR 2015 must be brought in the High Court (see Regulation 91(2) of the PCR 2015). Proceedings are commenced when a claim form is issued (see Regulation 92(6) of the PCR 2015). Those proceedings must be brought within the relevant time limit (as described above). The economic operator must serve the claim form on the contracting authority within seven days of the date of issue (see Regulation 94(1) of the PCR 2015). Where seeking a post-contractual remedy (e.g. a claim for ineffectiveness), the economic operator must also send a copy of the claim form to each person (other than the contracting authority) who is a party to the contract as soon as practicable (see Regulation 94(3) of the PCR 2015).
8. Are there any filing fees for an appeal?
The filing fees for bringing a High Court challenge will depend on whether the claimant is seeking damages or other non-monetary relief:
  • If the claimant is seeking damages, depending on the amount claimed the filing fee can range from GBP 35 to GBP 10,000;
  • If the claimant is seeking non-monetary relief only, the filing fee of GBP 528; or
  • If the claimant is seeking damages and non-monetary relief, the filing fee will include a fee for both elements as indicated above.

  • There is a fee of GBP 154 for lodging an application for Judicial Review. If permission is granted, there is a further fee of GBP 770 to start the judicial review procedure where permission is granted.

Additional fees may be payable at later stages of the procedure.
9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
Where proceedings are served at any point before the contract has been entered into, the authority must not (in accordance with Regulation 95(1) of the PCR 2015) enter into the contract until those proceedings are ‘determined, discontinued or disposed of’, unless the court agrees to lift the prohibition by interim order under Regulation 96(1)(a) of the PCR 2015. Otherwise, it is necessary to apply for interim measures.
10. Ineffectiveness and alternative remedies
The court must make an ‘ineffectiveness order’ if satisfied that one of three grounds applies:
  • the authority has awarded a contract without following an OJEU advertised tender process, where one was required (i.e. makes an illegal direct award);
  • the authority has failed to conduct a valid debrief and standstill process preventing the challenger from raising proceedings and has breached an actionable duty owed to the challenger when conducting the tender process (i.e. an aggravated breach when following an OJEU advertised tender process); or
  • (c) the authority has breached the rules on mini-competitions under a framework agreement or dynamic purchasing system and the value of the call-off contract is above the relevant EU threshold (i.e. an illegal call-off contract).

(see Regulation 99 of the PCR 2015).
To protect against the risk of an ineffectiveness challenge to the lawful direct award of a contract, an authority can publish a Voluntary Ex-Ante Transparency (VEAT) notice in the OJEU. The purpose of a VEAT notice is to notify the market of an intention and justification for a direct award. Provided the authority then observes a 10-day standstill period before entering into the contract, the first ground for ineffectiveness does not apply.
The third ground of ineffectiveness (illegal call-off contract) does not apply where the authority has communicated the contract award decision to bidders and observed a valid standstill period.
Otherwise, if one of the ineffectiveness grounds is satisfied, the court will make an ineffectiveness order, setting aside the contract and rendering unenforceable all rights and obligations under it from the date of the order. The court may however decline to make an ineffectiveness order where it is satisfied that overriding reasons relating to a general interest require that the enforceability of the rights and obligations arising from the contract should be maintained.
When a court declares a contract ineffective, the court must also impose a financial penalty on the authority (there is no upper limit) and deal with consequential matters, making such other orders as it considers necessary to address the consequences of the ineffectiveness order (see Regulation 102 of the PCR 2015).
Footnotes:
(1) This generally depends on the location of the contracting authority’s headquarters or the location where the works should be executed, the supply of products be delivered or services be rendered.
(2) A list of judicial courts of first instance specialized in interlocutory procedures has been set forth by decree.
(3) As the recourse to a lawyer is in most cases mandatory to file an appeal against tendering procedures, lawyers’ fees are incurred in these cases.
(4) It is possible only upon request from the claimant regarding contracts of a private nature.
(5) Please note that these thresholds are applicable pursuant to Commission Regulation (EU) No 1336/2013 of 13 December 2013 amending Directives 2004/17/EC, 2004/18/EC and 2009/81/EC of the European Parliament and of the Council in respect of the application thresholds for the procedures for the awards of contract which entered into force on 1 January 2014 and is directly applicable in all Member States.
(6) Utility Services Sector – includes water, energy, transport and postal services, pursuant to Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors.
(7) Approximate exchange rate: 1 EUR = 4.5 RON
(8) Particularities which would make the summary too complex are omitted
(9) According to the exchange rate of the National Bank of Ukraine, as of 10 March 2016 
(EUR 1=UAH 28.50)

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