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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

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 – until now – 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. Member states have 24 months to implement the provisions of the new rules into national law. The changes the new directives seek to implement have been italicised in this document.
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 contracts
Contracting authority other than central government 207 000207 000
Central government authorities134 000134 000
Central government authorities operating in the field of defence concerning products other than Annex V207 000
Central government authorities operating in the field of defence concerning products pursuant to Annex V134 000
Any public contractor (Art 7 Dir 2004/18)207 000207 0005 186 000
Utility Services Sector (Water, energy, transport and postal services) (Art 16 Dir 2004/17)414 000414 0005 186 000
Utility Services Sector: design contests (Art 61 Dir 2004/17) 414 000


Awarded bySupply contractsService contractsWorks contractsService contracts for social and other specific services
Sub-central contracting207 000207 000
Central government authorities134 000134 000
Central government authorities operating in the field of defence concerning products other than Annex III207 000
Central government authorities operating in the field of defence concerning products pursuant to Annex III134 000
Any public contractor 207 000207 0005 186 000750 000 (Annex XIV)
Utility Services Sector (Water, energy, transport and postal services) 414 000414 0005 186 0001m (Annex XVII)

Awarded byConcession contracts:
Any public contractor5 186 000

3. Under what 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 (Art 28 Dir 2004/18/EC and Art 40 Dir 2004/17/EC).
  • In case of complex contracts and if the use of the open/restricted procedure is not possible, the contracting authority may use the competitive dialogue (Art 29 Dir 2004/18/EC). This does not apply to the utility services sector.
  • Cases justifying the use of the negotiated procedure, with prior publication of a contract notice, include: (i) where only irregular or unacceptable tenders have been submitted in response to an open or restricted procedure or competitive dialogue insofar as the original terms of the contract are not substantially altered; (ii) exceptional cases, when the nature of the works, supplies, or services or the risks attached thereto do not permit prior overall pricing, (iii) services insofar as contract specifications cannot be established with sufficient precision (particularly financial and intellectual services), and contracts in respect of public works contracts, for works which are performed solely for purposes of research, testing or development (Art 30 Dir 2004/18).
  • In the utility services sector the use of the negotiated procedure is always possible (Art 40 (2) Dir 2004/17/EC).
  • Cases justifying the use of the negotiated procedure without prior publication of a contract notice include: (i) contracts for which no tenders or no suitable tenders or no applications have been submitted in response to an open or restricted procedure, (ii) 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; (iii) insofar as it is strictly necessary, for reasons of extreme urgency due to unforeseeable events, (iv) cases of public supply contracts when the products involved are manufactured purely for the purpose of research, (v) cases of public service contracts, when the contract concerned follows a design contest, (vi) for certain additional deliveries/works/services (Art 31 Dir 2004/18). In the utility sector area certain modifications to this apply (Art 40 (3) Dir 2004/17).
  • Contracting authorities may apply open or restricted procedures (Art 26 (2) Dir 2014/24 and Art 44 (2) Dir 2014/25).
  • 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 Albanian Lek
      1 200m (approx EUR 8,571,428) and applies to public works contracts;
    • The low value threshold, which is equal to Albanian Lek 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 Albanian Lek 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 Lek 200 000 000.00, 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 Lek 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 Albanian Lek 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 Albanian Lek 15 000 (approx EUR 107) up to a maximum of Albanian Lek 1m (approx. EUR 7,142).

Austria
By Bernt Elsner and Florian Kromer, CMS Vienna
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  207 000 – § 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  134 000 – § 12 (1) Z 1 BVergG
  • public works contracts and public works concessions: EUR  5 186 000 – § 12 (1) Z 3 BVergG
  • design contests by central purchasing bodies (prize money): EUR  130 000; in case of the other contracting authorities: EUR  207 000 – § 12 (2) BVergG
  • sector area
    • public supply contracts, public service contracts and design contests for obtaining public supply contracts: EUR  414 000 –  180 (1) Z 1 BVergG
    • public works contracts: EUR  5 186 000 – 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 separate 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
  • 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
  • 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 50 000 BAM (approx. 25 564 EUR) in case of goods and services or 80 000.00 BAM (approx. 40 903 EUR) 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 50 000 BAM (approx. 25 564 EUR) in case of goods and services or 80 000 BAM (approx. 40 903 EUR) 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 6 000 BAM (approx. 3 068 EUR) 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 500 000 BAM (approx. 256 000 EUR) for State authorities or 700 000 BAM (approx. 357 904 EUR) 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 2m BAM (approx. 1 022 584 EUR), 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:
  • 500 BAM (approx. 256 EUR) for the estimated value of procurement, to BAM 50 000 (approx. 25 564 EUR);
  • 800 BAM (approx. 409 EUR) for the estimated value of procurement, to 50 000 BAM (approx. 25 564 EUR) to 80 000 BAM (approx. 40 903 EUR);
  • 2 000 BAM (approx. 1 022 EUR) for the estimated value of procurement, to 80 000 BAM (approx. 40 903 EUR) to 250 000 BAM (approx. 127 823 EUR);
  • 5 000 BAM (approx. 2 556 EUR) for the estimated value of procurement, to 250 000 BAM (approx. 127 823 EUR) to 400 000 BAM (approx. 204 517 EUR);
  • 8 000 BAM (approx. 4 090 EUR) for the estimated value of procurement, to 400 000 BAM (approx. 204 516 EUR) to 800 000 BAM (approx. 409 033 EUR);
  • 12 000 BAM (approx. 6 135 EUR) for the estimated value of procurement to 800 000 BAM (approx. 409 033 EUR) to 9m BAM (approx. 4 601 627 EUR);
  • 25 000 BAM (approx. 12 782 EUR) when the value of the purchase is equal to or greater than 9m BAM (approx. 4 601 627 EUR)

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 4 000 BAM ( approx. 2 045 EUR)

Bulgaria
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).
In Bulgaria, all contracting authorities and contracting entities are obliged to have an Internet site containing information on all public procurements they have launched. Therefore, 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)?
In Bulgaria the applicability of the PPA and the relevant simplified procedures depends on the type of contract (services, supply or works) and on whether the place of performance is in Bulgaria or abroad.
ProcedereServices and Supply
in BGN without VAT Works in BGN without VAT
Performance in BulgariaPerformance abroadPerformance in BulgariaPerformance abroad
PPA does not apply< 20 000< 66 000< 60 000< 670 000
Public invitation 20 000 – 66 00066 000-132 00060 000-264 000670 000-1 650 000
‘Normal’ PPA procedures>66 000>132 000>264 000>1 650 000
Simplified procedural terms66 000 - 782 320132 000 - 783 320264 000 -2 640 0001 650 000 - 6 600 000

Note: 1 BGN (Bulgarian lev)=approx. EUR 0.511
3. Under what circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
The procedures listed here are the ones referred to in point 2 above as the ‘normal PPA procedures’.

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

Contracting authorities may apply the negotiated procedure with prior notice in the following events:
  • When awarding certain types of services (e.g. legal services, hotel and restaurant services, railway and water transport services, education services etc.), specifically listed in the PPA.
  • If no suitable tenders have been submitted in response to an open or restricted procedure or a competitive dialogue, provided that the initially notified terms and conditions are not substantially changed.
  • In the case of a technical complexity of the contract.
  • If the contract value may not be defined in advance due to the nature of the service, supplies or works to be awarded.
  • In the case of research and development activities in the construction sphere if no profit or recovery of costs is intended.

The contracting entities (i.e. sectorial purchasers operating in the water, energy, transport or postal services) may freely choose between the open, restricted and negotiated with prior notice procedures.

A negotiated procedure without prior notice may particularly be used by contracting authorities/entities:
  • If no tenders or no suitable tenders or no applications have been submitted in response to an open, restricted or negotiated with prior notice procedure, provided that the initially notified terms and conditions are not substantially changed.
  • If the contact can only be awarded to a particular contractor due to a protection of copyright, other intellectual property rights or other exclusive rights.
  • If urgent measures need to be taken in the case of force majeure circumstances which may not be overcome through the application of ‘normal procedures’.
  • In the cases of research and development activities which are not aimed at generating a profit or a recovery of costs.
  • If an order is placed with a contractor retained under a duly signed framework agreement or to the winner of a design contest.
  • When additional or new supplies of goods are required and for technical reasons the same supplier should be used.
  • When due to unforeseen events additional works or services shall be awarded to the same contractor, subject to technical and economic justifications thereto and provided that the additional services/works do not exceed 50% of the contract value.
  • In certain cases where works need to be redone by the same contactor.
  • When, for a short term, supplies can be procured at prices lower than the normal market prices.

Conditions for a competitive dialogue: 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?
Generally, all actions or omissions of the contracting authority/entity, which prevent the tenderer’s participation in the procedure, are appealable

Further to the general rule, the following decisions can be appealed in particular:
  • The decision for opening a procedure or for an amendment of the instructions to tenderer (ITT). In this case, the tenderers may appeal the terms and conditions of the procedure stipulated in the ITT.
  • The decision for stipulating shorter terms in the restricted or negotiated with prior notice procedures.
  • 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 the 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 with the Competition Protection Commission. Its decisions are subject to review by the Supreme Administrative Court at first instance.
8. Are there any filing fees for an appeal?
The fees for filing an appeal before the Competition Protection Commission is between approx. EUR 425 and EUR 840 depending on the contract value. The appeal against the Competition Protection Commission’s decision before the Supreme Administrative Court is subject to a fee of approx. EUR 25.
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
Interested parties may request a civil court to rescind a public procurement contract if: (i) the contract has been signed without conducting a mandatory public procurement procedure; (ii) the contracting authority/entity has applied any of the simplified terms and conditions or procedures in breach of the mandatory rules thereof (e.g. illegal implementation of a negotiated procedure without a prior notice); or (iii) 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, comprised of a three-tier process. 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 of the publication of the contract notice but no later than one year following its signing.

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
    Works2m


  • 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)
    Goods1m
    Services1m
    Works2m

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)2m2m6m
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 2m).
    • 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
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, tender notices may also be found in the Official Journal of the European Union.
  • Public tender 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.
  • French contracting authorities also publish tender notices on their respective websites/online platforms (profil d’acheteur).

2. What are the relevant thresholds for the applicability of French Public Procurement Law?
(Code des marchés publics (French Public Procurement Code) – the “CMP”; order n°2005-649 of 6 June 2005 regarding public and private entities which are not governed by the CMP)

The CMP1 provides for intermediary thresholds in addition to the thresholds resulting from European directives.
  • Contracts worth EUR 15 000 or more shall be concluded with prior publication (Art 40/I CMP). 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 15 000).
  • Generally speaking, for contracts whose 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 (Art 28 CMP).
  • Contracting authorities may also resort to the procedure referred to as “adaptée” for services contracts which are not listed in Art. 29 of the CMP (Art 30 CMP).
  • This being specified, more specifically, conditions of publication and competition processes for contracts worth between EUR 15 000 and EUR 90 000 can be freely determined by the contracting authority, provided they are adapted to specificities of the contract, e.g. the object and the amount of the contract (Art 40/II CMP).
  • For contracts worth between EUR 90 000 and the thresholds mentioned below, a contract notice has to be published on the contracting authority’s website/online platform (profil d’acheteur) and either (i) in the BOAMP or (ii) in a newspaper authorised to publish legal announcements (provided that the newspaper’s readership is appropriate to the economic sector involved) (Art 40/III CMP).

  • Contracting authorities involvedsupply contractsservices contractsworks contracts
    Central government authorities and central public institutions EUR 134 000EUR 134 000EUR 5 186 000
    Local government authorities and local public institutions, public health institutions (hospitals) EUR 207 000 EUR 207 000 EUR 5 186 000
    Utility Services Sector (water, energy, transport and postal services) EUR 414 000 EUR 414 000 EUR 5 186 000
  • For contracts whose values exceed the European thresholds, a tender 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, (iv) competitive dialogue?
  • The contracting authority is free to choose among the open and the restricted procedure (Art 33 CMP).
  • Contracting authorities may apply a negotiated procedure with or without prior publication of a contract notice, in the specific cases and circumstances referred to in Art. 35 of the CMP2:
    • with prior publication:
      • in the event that only irregular or unacceptable tenders have been submitted in response to an open or restricted procedure or competitive dialogue insofar as the original terms of the contract are not substantially altered; the contracting authority does not need to publish a contract notice where it includes in the negotiated procedure only the tenderers who, during the prior tendering procedure, submitted tenders in accordance with the formal requirements and deadlines of the tendering procedure;
      • in the case of services contracts, especially financial services mentioned in Art. 29/6° 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 use of an open or restricted procedure;
      • in respect of public works contracts, for works which are solely for purposes of research, testing or development and do not have any immediate commercial purpose;
      • in exceptional cases, when the nature of the works, supplies, or services or the risks attached thereto do not permit prior overall pricing.
      (Art 35/I CMP)
    • without prior publication:
      • insofar as is strictly necessary when, for reasons of extreme urgency brought about by events unforeseeable by the contracting authority in question, the time limit for the open, restricted or negotiated procedures with publication of a contract notice cannot be complied with;
      • in respect of public supply contracts, when 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;
      • 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 European Commission if it so requests;
      • for additional deliveries by the original supplier which are intended either as a partial replacement of normal supplies or installations or as an 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;
      • in respect of works and services 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: (i) when such additional works or services cannot be technically or economically separated from the original contract without major inconvenience to the contracting authority, or (ii) 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 shall not exceed 50% of the amount of the original contract;
      • 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;
      • for public service contracts, when the contract concerned follows a design contest and is awarded to the successful candidate or to one of the successful candidates;
      • 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;
      • 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, or a similar procedure.
      (Art 35/II CMP).
  • In the utility services sectors, the use of the negotiated procedure with prior publication is always possible (Art 144 CMP).
  • Competitive dialogue can be used only for the award of particularly complex contracts, i.e. when at least one of the following two conditions has been met: the contracting authority (i) is objectively unable to define on its own and in advance the technical ways to meet its needs or (ii) is objectively unable to set up the legal or financial framework of a project (Art 36 CMP). For an example of a case where the Conseil d’Etat (“CE”, French highest administrative court) has considered the use of the competitive dialogue as valid, please see: CE, 11 March 2013, Assemblée des chambres françaises de commerce et d’industrie, n°364551, regarding the conclusion of a single contract to overhaul all existing contracts relating to collective insurance).

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?
  • The standstill is 16 days from the day when the announcement of the contract award decision is sent to the unsuccessful tenderer.
  • It lasts 11 days when electronic means are used to inform all the tenderers concerned.
    (Art 80 CMP)3

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)4, or the locally competent5 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 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 se6 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 nature7 (e.g., within the framework of an interlocutory procedure filed after the signing of the contract (référé contractuel), for example, 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 66/2007/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 have been 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 must have affected the chances of the tenderer to apply for a 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 (Art L. 551-19, L. 551-20, L. 551-22 CJA, regarding contracts of a public nature).

Germany
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/contractsAct Against Restraints on Competition (Gesetz gegen Wettbewerbsbeschränkungen – GWB), Section 4 – Award of Public Contracts (§§ 97 et seq.)
    All services/contracts except services within the transport, water and energy sectorsRegulation on the Award of Public Contracts (Verordnung über die Vergabe öffentlicher Aufträge – VgV)
    Construction services**Section 2 of the Regulations on Contract Awards for Construction Services (Vergabe- und Vertragsordnung für Bauleistungen – VOB/A)
    Supplies and services**Section 2 of the Regulations on Contract Awards for Public Supplies and Services (Vergabe- und Vertragsordnung für Leistungen – VOL/A)
    Freelance professional services**Regulations on Contract Awards for Freelance Professional Services (Vergabeordnung für freiberufliche Leistungen – VOF)
    Services within the transport, water and energy sectors**Regulations on Contract Awards in the Transport, Water and Energy Sectors (Sektorenverordnung – SektVO)

    *Other sector-specific regulations, such as regulations concerning the defence and security sector, are not considered here.
    **Only some provisions of Section 2 of VOB/A, Section 2 VOL/A, VOF and SektVO are applicable to so-called subordinated services (nachrangige Dienstleistungen) (services listed in Annex II B Dir 2004/18/EC).

  • Below the EU thresholds and in relation to subordinated services, the following national regulations are applicable:


  • Construction servicesSection 1 of VOB/A
    Supplies and servicesSection 1 of VOL/A
    Freelance professional servicesVOF and SektVO are not applicable
    Services within the transport, water and energy sectors

  • 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 Award Restricted Tender Procedure
    Federation500not defined
    Baden-Wuerttemberg 10 00040 000
    Bavaria (local communities)30 000 100 000
    Bavaria (state)25 000not defined
    Berlin7 50025 000
    Brandenburg (local communities)100 000100 000
    Brandenburg (state)20 000 20 000
    Bremen10 00040 000
    Hamburg50 000 100 000
    Hesse50 000 to 100 000200 000
    Mecklenburg-Western Pomerania100 000 100 000
    Lower Saxony25 00050 000
    North Rhine-Westphalia (local communities)100 000 100 000
    North Rhine-Westphalia (state)15 000 50 000 to 100 000
    Rhineland-Palatinate15 000 not defined
    Saarland 10 000 to 15 00050 000 to 100 000
    Saxony25 000 not defined
    Saxony-Anhalt25 000 50 000
    Schleswig-Holstein100 000100 000
    Thuringia20 000 50 000

    Construction Services
    Federation (Bund)/ Federal state (Bundesland)Direct Award Restricted 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 20 00050 000 to 150 000
    Bavaria (local communities)30 000 125 000 to 500 000
    Bavaria (state)10 00050 000 to 150 000
    Berlin10 00050 000 to 150 000
    Brandenburg (local communities)100 0001 000 000
    Brandenburg (state)20 000 50 000 to 200 000
    Bremen10 00050 000 to 150 000
    Hamburg100 000 1 000 000
    Hesse100 000 per technical lot100 000 to 1 000 000 per technical lot
    Mecklenburg-Western Pomerania100 000 1 000 000
    Lower Saxony25 00050 000 to 150 000
    North Rhine-Westphalia (local communities)100 000 1 000 000
    North Rhine-Westphalia (state)not defined 50 000 to 150 000
    Rhineland-Palatinate10 000 50 000 to 150 000
    Saarland not definednot defined
    Saxony25 000 50 000 to 150 000
    Saxony-Anhalt10 000 50 000 to 150 000
    Schleswig-Holstein100 0001 000 000
    Thuringia50 000 50 000 to 150 000

  • Additional information can be found in the following fact sheet provided by the Chamber of Commerce and Industry Baden-Wuerttemberg.
  • 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, (iv) competitive dialogue?
  • The circumstances for the applicability of the different procedures depend on the relevant German regulation (see Question 2):

  • VOB/A
    Section 2 VOB/ASection 1 VOB/A
    Open procedure (Offenes Verfahren)
    • The contracting authority has to choose the open procedure if another procedure is not justified (§ 3EG (2) VOB/A).
    Open procedure (Öffentliche Ausschreibung)
    • The contracting authority has to choose the open procedure if another procedure is not justified (§ 3 (2) VOB/A).
    Restricted procedure (nicht offenes Verfahren) with or without a call for competition is permissible:
    • If the preparation of the offer involves disproportionate efforts
    • If the contractual performance can be adequately provided only by a limited number of companies
    • If an open procedure or restricted procedure has been annulled or
    • If an open procedure is inappropriate for other reasons
    (§ 3EG (3) VOB/A).
    Restricted procedure (beschränkte Ausschreibung) with or without a call for competition is permissible:
    • If the contract value does not exceed the following thresholds:
      • Extension work, landscape construction, road equipment: up to EUR 50 000
      • Remaining work up to EUR 100 000
      • Underground construction engineering, traffic route construction and civil engineering up to EUR 150 000
    • If the award did not have an acceptable result or
    • If an open procedure is inappropriate for other reasons
    (§ 3 (3) VOB/A).
    Restricted procedure without a call for competition is permissible:
    • If the contractual performance can be adequately provided only by a limited number of companies or
    • If the preparation of the offer involves disproportionate efforts
    (§ 3 (4) VOB/A).
    Negotiated procedure with public notice is permissible:
    • If an open or restricted procedure has been annulled because of unacceptable tenders, provided no fundamental changes have been made to the original terms and conditions of the contract
    • If the construction project is to be performed solely for purposes of research, tests or developments without the intention of profitability or cost recovery or
    • If the performance cannot be described with such precision that prior overall pricing is possible
    (§ 3EG (4) VOB/A).
    There are no regulations regarding a negotiated procedure in Section 1; instead, a direct award is provided for. However, the principles of competition are applicable and if relevant for the European market a negotiated procedure with a public call for competition is required.
    Negotiated procedure without public notice is permissible:
    • If no economically advantageous tenders have been submitted in response to an open or restricted procedure, provided no fundamental changes have been made to the original terms and conditions of the contract and all suitable tenderers are included in the negotiated procedure
    • If no tenders or only tenders that had to be excluded were submitted in response to an open or restricted procedure, provided no fundamental changes have been made to the original terms and conditions of the contract
    • If due to its exceptional technical or artistic features or the protection of exclusive rights, the contract can only be performed by a specific company
    • In cases of extreme urgency due to unforeseeable circumstances that are not attributable to the conduct of the contracting authorities or
    • In the event of certain subsequent or additional services
    (§ 3EG (5) VOB/A).
    Competitive dialogue is permissible if the contracting authority is unable to specify:
    • The technical means to meet their needs and purposes or
    • the legal and financial conditions of the project
    (§ 3EG (7) no. 1 VOB/A).

    VOL/A
    Section 2 VOL/ASection 1 VOL/A
    Open procedure (Offenes Verfahren)
    • The contracting authority has to choose the open procedure if another procedure is not justified (§ 3EG (1) VOL/A).
    Open procedure (Öffentliche Ausschreibung)
    • The contracting authority has to choose the open procedure if another procedure is not justified (§ 3 (2) VOL/A).
    Restricted procedure (nicht offenes Verfahren) is permissible:
    • If the contractual performance can be adequately provided only by a limited number of companies
    • If an open procedure involves disproportionate efforts for the contracting authority or the tenderers
    • If an open procedure has not yielded any economically advantageous result or
    • If an open procedure is inappropriate for other reasons
    (§ 3EG (2) VOL/A).
    Restricted procedure (beschränkte Ausschreibung) with a call for competition is permissible:
    • If the contract value does not exceed the following thresholds:
      • If the contractual performance can be adequately provided only by a limited number of companies or
      • If an open procedure is inappropriate for other reasons
    (§ 3 (3) VOL/A).
    Restricted procedure without a call for competition is permissible:
    • If an open procedure has not yielded any economically advantageous result or
    • If an open procedure involves disproportionate efforts for the contracting authority or the tenderers
    (§ 3 (4) VOL/A).
    Negotiated procedure with a call for competition is permissible:
    • If all tenders submitted in response to an open or restricted procedure or a competitive dialogue had to be excluded, provided no fundamental changes have been made to the original terms and conditions of the contract
    • If prior overall pricing is not possible or
    • If the contractual provision cannot be described with the required precision
    (§ 3EG (3) VOL/A).
    There are no regulations regarding a negotiated procedure in Section 1; instead, a direct award is provided for. However, the principles of competition are applicable and if relevant for the European market a negotiated procedure with a public call for competition is required.
    Negotiated procedure without a call for competition is permissible:
    • If no tenders or no economically advantageous tenders have been submitted in response to an open or restricted procedure, provided no fundamental changes have been made to the original terms and conditions of the contract
    • If the goods to be supplied are produced only for research, tests, developments or improvements
    • If due to its exceptional technical or artistic features or the protection of exclusive rights, the contract can be performed only by a specific company
    • In cases of extreme urgency due to unforeseeable circumstances that are not attributable to the conduct of the contracting authorities
    • For certain subsequent or additional supplies or services
    • For a prior offer of a reward (Auslobung)
    • For purchases of goods notified and bought on commodity exchanges or
    • For purchases of goods on particularly advantageous terms because of the termination of business or insolvency of the seller
    • (§ 3EG (4) VOL/A).
    (§ 3EG (5) VOB/A).
    Competitive dialogue is permissible if the contracting authority is unable to specify:
    • The technical means to meet their needs and purposes or
    • the legal and financial conditions of the project
    (§ 3EG (7) sentence 1 VOL/A).

  • VOF
    • In general, contracts are awarded in a negotiated procedure with a call for competition (§ 3 (1) VOF).
    • Under certain conditions – which are not set out in detail – the contracting authority may award contracts in a negotiated procedure without a call for competition (§ 3 (4) VOF).
  • SektVO
    • The contracting authority may choose between open procedures, restricted procedures and negotiated procedures with public notice (§ 6 (1) SektVO).
    • Under certain conditions – which are not set out in detail – a negotiated procedure without public notice may be admissible (§ 6 (2) SektVO).

4. Which decisions of a contracting authority can be appealed?
  • In general, any decisions of the contracting authority during the phase of preparing and/or within an award procedure that violates or could violate rights of the tenderer can be appealed.
  • However, there are no specific procurement review bodies to deal with procurements below the EU thresholds, on a national level and in some Federal states.

5. What time limits exist for appeals? Are further appeals precluded after the expiry of these limits?
  • Procurement regulations on time limits for appeals exist only for procurement procedures above EU thresholds. The time limits depend on the applicable appeal procedure:
    • Raising an objection (Rüge) against the contracting authority
      • Objections to the contracting authority must be filed without undue delay after the applicant becomes aware of the violation of the procurement provisions (§ 107 (3) sentence 1 no. 1 GWB); undue delay depends on the complexity of the factual and legal situation and will – as a general rule – be assumed after three to seven days.
      • Violations of provisions that become apparent from the tender notice must be reported before the end of the period specified in the notice for the submission of a tender or application (§ 107 (3) sentence 1 no. 2 GWB)
      • Violations of provisions that become apparent from the award documents must be reported by the end of the period specified in the notice for the submission of a tender or application (§ 107 (3) sentence 1 no. 3 GWB)
    • Review procedure (Nachprüfungsverfahren)
      • Time limit of 15 calendar days after receipt of notification from the contracting authority that it is unwilling to redress the objection (§ 107 (3) sentence 1 no. 4 GWB)
    • Immediate complaint (Sofortige Beschwerde)
      • Time limit of two weeks from the date of service (Zustellung) of the decision on the review procedure (§ 117 (1) GWB)
  • A failure to meet the above-mentioned requirements for objection and deadlines leads to preclusion so that a review procedure is inadmissible.
  • Regarding the other review procedures – not exclusively applicable to procurement procedures – see Question 7.

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 (§ 101a (1) GWB).
    • There is no standstill period in cases in which negotiation procedures are justified without previous notification on grounds of extreme urgency (§ 101a (2) 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) (§§ 104 (1), 106 (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 (§ 116 (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 § 14 Procurement Act Hesse, § 8 (2) Procurement Act Saxony, § 19 (2) Procurement Act Saxony-Anhalt, § 19 (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).
  • Review by the competent supervisory authority (Aufsichtsbehörde), including legal, functional and disciplinary supervision (see § 102 GWB).

8. Are there any filing fees for an appeal?
  • Authority of first instance (Vergabekammer): between EUR 2 500 and EUR 50 000; in exceptional cases, e.g. significant economic interest, up to EUR 100 000 (§ 128 (2) GWB). In general, the assessment of fees depends on the administrative efforts and economic interest.
  • 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 (§§ 115 (1), 118 (1), 3 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 (§ 115 (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 § 101a 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 (§ 101b (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 (§ 101b (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 § 126 GWB or general rules of German civil law.

Hungary
By Ferenc Mátrai and Veronika Kovács, CMS Budapest
1. Where can one find public procurement notifications for Hungary?
  • Public Procurement Bulletin, the Official Journal of the Public Procurement Authority; available on-line 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 26 660);
    • For services contracts: HUF 8m (approx. EUR 26 660);
    • For public works contracts: HUF 15m (approx. EUR 50 000);
    • For works concession: HUF 100m (approx. EUR 333 300);
    • For services concession: HUF 25m (approx. EUR 83 300).
  • The relevant thresholds for public procurements by public service providers as contracting authorities:
    • For supply contracts: HUF 50m (approx. EUR 166 660);
    • For services contracts: HUF 50m (approx. EUR 166 660);
    • For public works contracts: HUF 100m (approx. EUR 333 300).
  • If the estimated value of the supplies or services is below HUF 25m (approx. EUR 83 300), or the estimated value of the public works is below HUF 50m (approx. EUR 166 660) the contracting authorities may open a negotiated procedure without prior publication of a contract notice (Section 122(7) of Act CVIII of 2011 on public procurement, hereinafter: „PPA”) or initiate an open procedure with simplified rules (Section 122/A of the PPA).
  • These types of public procurement procedure are widespread and popular with contracting authorities.

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 82 (1) of the 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 can be carried out (Section 89(2) of the PPA):
    • if no tenders or no suitable tenders or no applications have been submitted in response to an open, restricted or competitive dialogue procedure;
    • if prior overall pricing is not possible due to the nature of, or risks associated with the service, based on objective grounds;
    • if a public works contract is necessary only for R&D purposes;
    • if the objective nature of the services does not allow for a detailed specification of contractual terms, required for an open or restricted procedure.
  • A negotiated procedure without prior publication of a contract notice can be carried out (Section 94 (2)-(3) of the PPA):
    • if an open or restricted procedure or a competitive dialogue has failed and the conditions of the procurement are substantially the same;
    • if open or restricted procedure or a negotiated procedure with prior publication of a contract notice has been unsuccessful as no tenders or requests for participation have been submitted;
    • 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 (i) for additional works and services not included within the contract (ii) for new works or services consisting of a repetition of similar works entrusted to the company
  • Negotiated procedures without prior publication of contract notice can be also carried out in special cases below the EU public procurement thresholds (Section 122(7) of the PPA). The special cases apply:
    • where 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;
    • to procurements of embassies;
    • where the estimated value of the supplies or services is below
      HUF 25m (approx. EUR 83 300), or the estimated value of the public works is below HUF 50m (approx. EUR 166 660).
  • Conditions for a competitive dialogue (Section 102 (1) of the PPA): in case of complex contracts and if the open/restricted procedure cannot be applied in the contracting authority’s view.

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 137(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 137(4) of the PPA).

6. How long is the standstill period?
  • Generally the standstill period is ten days from the date of dispatch of the written report on the evaluation process.
  • The contract may be concluded before the expiration of the ten day standstill period in certain cases listed in Section 124(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 Appellate 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 shall be calculated as follows:
    • in case of procurements above the EU threshold, the basis of the filing fee shall be 1% of the estimated value of the procurement, but it shall not exceed HUF 25m (approx. EUR 83 300);
    • in case of procurements below the EU threshold, the basis of the filing fee shall be 1% of the estimated value of the procurement, but it shall not be less than 200 000 (approx. EUR 660) and shall not exceed HUF 6m (approx. EUR 2 000).
  • The actual filing fee is subject to the number of requests contained within the appeal. In case of 1-3 requests, the actual fee shall be 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 shall equal 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), but HUF 200 000 (approx. EUR 660) remains with the Public Procurement Arbitration Board.

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 144(1)-(2) of the PPA).

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 152(3)-(4) 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 and Emma Keulen, 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
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 out therein, in the event that the value of such contracts is equal to or exceeds the thresholds indicated below:

  • Awarded bySupply contractsServices contractsPublic Works contracts
    Entities mentioned in Art. 7 of the PCC, operating in the water, energy, transport and postal services’ sectors(*)EUR 414 000EUR 414 000EUR 5 186 000
    Private entities which are financed by more than 50% by contracting authorities (pursuant to Art. 2 of the PCC) EUR 207 000EUR 5 186 000

    (*) AccAccording to Art. 12 of the PCC entities mentioned in Art. 2(2) shall also be subject to the rules applicable to entities listed in Art. 7, if they are operating within the utilities sector
  • The Public Contracts Code also establishes that contracting authorities may choose to apply 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 what circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
  • (i) 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.
    (ii) The PCC stipulates that contracting authorities may choose an open or restricted procedure without prior publication of a notice in the Official Journal of the European Union in the event that the contract value is below the following amounts:

  • Public works contracts EUR 5 186 000
    Supply or services contractsEUR 207 000
    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 134 000

  • (iii) The negotiated procedure can be used in the cases mentioned in Art. 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 have not been 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 conclusion can be adopted either by way of the open procedure or the restricted procedure according to Art. 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 (Art. 31).
  • (iv) Competitive dialogues are only applicable to particularly complex contracts and where contracting authorities consider that the open or restricted procedure would 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 submit an administrative appeal against any of the decisions made during a public tender procedure. It is also possible to appeal directly against the specification documents.

5. What time limits exist for appeals? Are further appeals precluded after the expiry of these limits?
  • The administrative appeal must be filed within five business days 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 against any acts related to public works, public works concessions, public supply contracts and service contracts, as well as the proceeding specifications. These are urgent proceedings and should be filed within one month 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 review bodies exist?
  • Reviews can be performed by the contracting authorities and/or the Administrative Courts.

8. Are there any filing fees for an appeal?
  • There are no fees for an administrative appeal under the Public Contracts Code (principle of gratuitousness).
  • EUR 204 for a judicial appeal 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 under the Public Contracts Code, in principle, does not suspend the procedure, however until the term for deciding on the appeal has not been completed the following acts may not be undertaken: (i) qualification; (ii) beginning of the negotiation; and (iii) award of the contract.
  • Judicial appeals under the Administrative Courts Law also do not suspend the procedure – it is necessary to apply for an interim measure.

10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC
  • As a general rule the Public Contracts Code according to Directive 66/2007/EC establishes that public contracts are ineffective in the following:
    • if the contracting authority has awarded a contract without prior publication of a contract notice in the Official Journal of the European Union;
    • 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 to in the preceding paragraph cannot refrain from declaring the contract ineffective based on the balancing of an economic interest directly related to the contract in question, when such interest is grounded, inter alia, (i) on the costs resulting from a delay in the performance of the contract, (i) on the opening of a new procedure, (iii) on a change of the contractual party or (iv) on a 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 0008 for supply or services contracts awarded by contracting authorities outside the Utility Services Sector9;
    • EUR 414 0008 for supply or services contracts awarded by contracting authorities in the Utility Services Sector;
    • EUR 5 186 0008 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 RON10 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 42m – RON 7 980 + 0.01% of the difference between contract value and RON 4 200 001;
      • contracts between RON 42 000 001 and RON 420m – RON 11 760 + 0.001% of the difference between contract value and RON 42 000 001;
      • contracts between RON 420 000 001 and 4 200m – 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 4m – RON 760 + 0.01% of a dispute value exceeding RON 400 001;
      • between RON 4 000 001 and RON 40m – RON 1 120 + 0.001% of a dispute value exceeding RON 4 000 001;
      • between RON 40 000 001 and RON 400m – RON 1 480 + 0.0001% of a dispute value exceeding RON 40 000 001;
      • between RON 400 000 001 and RON 4 000m – RON 1 840 + 0.00001% of a dispute value exceeding RON 400 000 001;
      • over 4 000m – 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 500 000 RUB (approx. 10 000 EUR) 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
By Graeme Young, CMS London / Edinburgh
1. Where can one find public procurement notifications for Scotland?
All UK public procurement notifications can be found on Tenders Electronic Daily - ted.europa.eu.
Scottish public procurements are also published on the Public Contracts Scotland portal - http://www.publiccontractsscotland.gov.uk/ . These include below EU threshold procurements.
2. What are the current thresholds for the applicability of the Public Contracts Code?
The Public Contracts (Scotland) Regulations 2012 (PC(S)R) require competitive processes to be run for contracts which exceed the value thresholds and are not covered by any of the relevant exclusions or exceptions.

The key value thresholds from 1 January 2014 are
Services Supplies Works
Central government bodies £111,676*
(€134,000)
£111,676
(€134,000)
£4,322,012
(€5,186,000)
Other public bodies £172,514
(€207,000)
£172,514
(€207,000)
£4,322,012
(€5,186,000)

* With the exception of the following services which have a threshold of £172,514 (€207,000):
  • Part B (residual) services
  • Research & development services;
  • the following telecommunication services - (i) television & radio broadcast services; (ii) interconnection services; and (iii) integrated telecommunications services; and
  • Subsidised services contracts under Regulation 34.

The value thresholds are reset in domestic currencies every two years.
Separate legislation applies to below EU threshold regulated procurements - The Procurement Reform (Scotland) Act 2014.
3. Under which circumstances can one use the (i) open procedure, (ii) restricted procedure, (iii) negotiated procedure, (iv) competitive dialogue?
The open and restricted procedures are generally preferred for more straightforward, fully regulated procurements whilst the competitive dialogue procedure is used in more complex procurements.
  • Open Procedure – Regulation 15
    This procedure is open to all interested parties. No negotiation with bidders is permitted. Generally suitable only for the most straightforward procurements where contract specification is clear and can be priced.
  • Restricted Procedure – Regulation 16
    All interested parties can submit an expression of interest but only those
    meeting the pre-qualification or selection criteria will be invited to tender. No negotiation with bidders is permitted. The initial selection / PQQ stage allows contracting authorities to limit the number of suppliers that will be invited to tender to a minimum of five, where there are five or more bidders that meet the pre-qualification criteria.
  • Negotiated Procedure – Regulation 17
    This procedure can only be used in exceptional circumstances. Specific grounds are prescribed for using the negotiated procedure either with a call for competition (i.e. publication of an OJEU contract notice) or without a call for competition (i.e. without prior publication of an OJEU contract notice).
    By way of example, use of the negotiated procedure with a call for competition is only available:
    • if an open or restricted procedure is discontinued as a result of irregular tenders or because no acceptable tenders were made;
    • for works contracts carried out solely for research or testing purposes and on a not-for–profit basis;
    • where the nature of the works/services/ supplies or the risks attaching to them do not permit prior overall pricing; or
    • if specifications for a service contract cannot be established with sufficient precision to enable an open or restricted procedure to be run.
    These exceptions are likely to be narrowly construed.
  • Competitive Dialogue – Regulation 18
    This procedure is suitable for particularly complex contracts, where the contracting authority cannot in advance define the technical specification required or specify the “legal or financial make-up of the project”
    Negotiation with bidders is permitted.

4. Which decisions of a contracting authority can be appealed?
Any decision by a contracting authority can be challenged if there has been an actionable breach of the public procurement rules and a claimant can show that it has suffered, or risks suffering, loss or damage as a consequence.
5. What are the time limits for appeals? Are further appeals precluded after the expiry of these time limits?
The time limit for bringing proceedings is 30 days running from the date when the claimant knew or ought to have known that grounds for bringing those proceedings had arisen (the “date of knowledge”), with court discretion to extend the period up to an absolute maximum three months from the date of knowledge.
Timescales for bringing proceedings seeking an ineffectiveness order are either 30 days or six months, as explained below:
  • if a public body awards a contract or concludes a framework agreement without prior publication of a contract notice in the OJEU (direct award) and submits a contract award notice giving reasons for its decision not to advertise the contract or framework agreement in the OJEU (see paragraph 21.1), proceedings must be brought within 30 days of publication of the contract award notice in the OJEU;
  • if a public body sends a decision letter to all tenderers and all candidates concerned (if any) containing a summary of the reasons why the recipients were unsuccessful (a fully completed standstill letter would count for this requirement), proceedings must be brought within 30 days of the date of sending the notice;
  • in any other case, proceedings must be brought within 6 months from the date of the contract being entered into or the date of conclusion of the framework agreement. This is potentially a long period for a contract or framework agreement to be at risk of an ineffectiveness order.

6. How long is the standstill period?
The standstill period must be at least 10 calendar days issuing the award decision letters and entering into the contract entry into a contract with the successful bidder.
7. Which review bodies exist?
Court proceedings under the Scottish Regulations can be brought in the Sheriff Court or the Court of Session in Scotland.
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 would be £202.00.
9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
Where a summons is served at any point before the contract has been entered into, the procurement is automatically suspended.
Where a challenge is made after the contract has been entered into it will have no suspensory effect.
10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC
If a contracting authority either:
  • awards a contract without an OJEU contract notice where one was required (i.e. makes an illegal direct award);
  • fails to conduct a valid debrief and standstill process preventing the challenger from raising proceedings and it is later established that the authority had breached the Regulations when conducting the tender process; or
  • breaches the rules on mini-competitions under a framework agreements or dynamic purchasing systems and the value of the contract is above the relevant EU threshold and there was no standstill period,

the court make an order of ineffectiveness setting aside the contract.
When a court declares a contract ineffective, the court must also impose a financial penalty (there is no upper limit) on the contracting authority and deal with consequential matters (for example restitution and compensation between the contracting authority and the contractor who was displaced). The contracting authority might face litigation by that displaced contractor and/or a claim for damages from the challenger.
Serbia
By Ksenija Ivetic, CMS Belgrade
1. Where can one find public procurement notifications for Serbia?
2. What 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) (hereinafter the “PPA”).
For the procurement of goods, services, or works, the value of which does not exceed RSD 400 000 (app. EUR  3 448 ) per annum, the contracting authority is not obliged to apply the provisions of the PPA.

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 (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, if it is impossible to include detailed specifications due to their nature and conditions for competitive dialogue have not been 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;
      • for 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;
      • for 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, under the condition that other creditors provide their consent; 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?
Appeals can be submitted during the entire procurement procedure, against any decisions reached by the contracting authority, unless the PPA stipulates otherwise (Art. 149 of PPA).
5. What time limits exist for appeals? Are further appeals precluded after the expiry of 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 the deadline for the submission of bids;
  • three days in case of a qualification procedure and procedure on procurements of small value (where the annual value of the object of procurement does not exceed RSD 3m, i.e. app. EUR  25 862).


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 receipt of the decision;
  • five days from the receipt of decision in case of procurements of small value.


In case of negotiated procedure without the announcement of a public call for a submission of bids, the deadline for a submission of appeals shall amount to ten days from the day on which the decision on award of contract was reached.
The actions of the contracting authority in the procurement procedure cannot be appealed if, prior to the expiry of the above specified general deadlines (seven and three days), the bidder knew or could have known about the reasons for filing an appeal, but failed to file an appeal within these deadlines.
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 appeals or, if an appeal has been filed, upon rejection of the appeal (Art. 112 of PPA).
7. Which review bodies exist?
The State Commission (“Republicka komisija”) decides on the appeal filed against a decision of the contracting authority regarding the award of contract.

An administrative dispute can be initiated against decisions of the State Commission, before the Administrative Court.
8. Are there any filing fees for an appeal?
Fees for the filing of an appeal vary as follows:
  • RSD 15 000 (approx. EUR  129) when the appeal is submitted against a procedural decision of the Public Procurement Administration (“Uprava za javne nabavke”) on negative references of bidder;
  • RSD 40 000.00 (approx. EUR  345) in the public procurement procedure of small value and in the negotiated procedure without the announcement of a public call;
  • RSD 80 000 00 (approx. EUR  690) if the appeal is filed prior to the opening of bids or if the estimated value of the public procurement or the price offered by the awarded bidder does not exceed RSD 80m (approx. EUR  689 655);
  • 0.1% of the estimated value of the public procurement or the price offered by the awarded bidder, where that amount exceeds RSD 80m (approx. EUR  689 655).

9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
An appeal has an 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).
There are two cases in which 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 an exceptional emergency caused by extraordinary circumstances or unforeseeable events; and
  • if, upon a proposal submitted by the contracting authority, the Republic Commission does not decide otherwise.

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 the relevant principles contained in EU directive 66/2007/EC into the legal framework regulating public procurements.

In this sense:
  • the State Commission is entitled to consider a procurement contract ineffective, either at its own initiative or at the request of an interested party, in cases stipulated in the PPA (Art. 163 of PPA); and
  • alternative penalties shall 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 and to impose a fine on the contracting authority of up to RSD 1m (approx. EUR  8 620) (Art. 162 and 163 of PPA).

Slovakia
By Jan Azud, Ruzicka Csekes in association with CMS, Bratislava
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 30 000 (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 1 000, then the contracts will be awarded through a state-run electronic market (applicable from mid 2014). Until then, the same rules apply to both regularly available supplies, services or works and other available supplies, services or works.
  • Over-limit contracts:

  • Awarded by11Aupply contractsServices contractsWorks contracts
    Central government authorities 134 000134 000 (in general)
    207 000 (for R&D and non-priority services under Annex 3 ZVO)
    5 186 000
    Central government authorities operating in the field of defence concerning products set out in Annex IV ZVO134 000
    Central government authorities operating in the field of defence concerning products other than set out in Annex IV ZVO207 000
    Contracting authorities other than central government authorities207 000207 0005 186 000
    Utility Services Sector 414 000414 0005 186 000

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 – § 51, § 52 ZVO
  • a negotiated procedure with publication can be carried out (§ 55 ZVO):
    • 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 shall not be changed in a material way. An irregular or unacceptable tender is a tender which is either non-compliant with the requirements of the contracting authority (or the law), or contains clearly unacceptable conditions
    • if the supplies, works or services do not allow for a specification of the conditions concerning pricing due to their nature or due to associated risks
    • if conditions concerning the services, in particular financial services, cannot be set out in sufficient detail to allow for an open or restricted procedure
    • in case that construction works will be carried out solely for the purposes of research, testing or development and not for the purposes of securing profits or recovering research and development costs
    • in case of service contracts concerning legal services or other services set out in an annex to the law, the quality of such services being mostly contingent on the skills and experience of an individual who provides such services on his/her own behalf or on behalf of a legal entity.
  • In the utility services sector the use of the negotiated procedure with publication is always possible (§ 85 ZVO)
  • A negotiated procedure without publication (“direct negotiated procedure”) can be carried out (§ 58 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
    • 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 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 cases of contracts, when the contract concerned follows a design contest
    • for certain additional works and services provided that the additional value of the works or services does not exceed 20% of the initial contract value
    • 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
    • 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 public 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
  • there are slightly more cases justifying the use of direct negotiated procedure in the utility services sector (§ 88 ZVO)
  • conditions for a competitive dialogue (§ 60 ZVO): in case of particularly complex contracts and if the open/restricted procedure cannot be used (e.g. in case of PPPs). 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 (§136 and § 138 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 – § 138 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.
  • Charges after the tender prices have been revealed are as follows:
    • 1% of the bid price, however no more than EUR 300 000
    • in case of abnormally low tenders, 1% of the bid price, minimum EUR 600 and maximum EUR 30 000.
  • 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 twice the amount collected by the Public Procurement Authority in case of over-limit contracts and EUR 3 000 for under-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 (§148a ZVO)
    • In addition, the Public Procurement Authority shall (even without a request from an interested party), within 1two months, 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 (§ 147a 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
    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 (Ar. 12 of Zakon o javnem naročanju (ZJN2)), notifications are only announced in Slovenia, via the above mentioned internet portal. If the value of the public procurement is lower than EUR 40 000 (for supply and services contracts) or lower than EUR 80 000 (for works contracts), notifications are not obligatory.

    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 treshold value:

    • Awarded bySupply contractsServices contractsWorks contracts
      State and local community authority134 000134 0005 186 000
      Other authority/authority operating in the field of defence207 000207 000 (including public procurements awarded by any authority related to services from category A, electronic communication services of category 5 or any services from category B)5 186 000
      Any authority in accordance with the Act, operating within the water, energy, transport and postal services sector (ZJNVETPS2)414 000414 0005 186 000

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

    • Awarded bySupply contractsServices contractsWorks contracts
      Any contracting authority40 00040 000 80 000

    • Public procurements for which public notice is not demanded:

    • Awarded bySupply contractsServices contractsWorks contracts
      Any contracting authority10 00010 00020 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 negotiated procedure without prior publication of a contract notice or as a negotiated procedure with prior publication of a contract notice. The latter can be used, inter alia, when no appropriate bid was received in the open or restricted procedure or no bid was received at all. In such cases, new tenderers can join the procedure, although they were not chosen in the first phase of restricted or open procedure. Furthermore, such negotiated procedures can be also be applied in the event the total value of the procurement cannot be evaluated, in cases of works contracts for buildings that are only awarded for research, testing or development purposes and not for a maximization of profits, in cases of public procurements whose value is lower than the European threshold value and in cases of services comprised of intellectual services and services of category 6 from List A.
    • Negotiated procedure without prior publication of a contract notice can be used when no appropriate bid or no bid at all was received in open or restricted procedures, when there is only one tenderer on the market, when special conditions demand that public procurement shall be submitted quickly due to objective circumstances or when due to technical or artistic requirements of the subject matter the contract can be awarded only to a particular tenderer
    • Conditions for use of competitive dialogue are determined in Art. 27 of ZJN2 where it is stated that competitive dialogue shall be used in the event that open or restricted procedure cannot be used due to the complexity of the public procurement and under the condition that the award criterion for selection is the most economically advantageous tender. Art 2(1) item 27 of ZJN2 clarifies that a public procurement is deemed complex, if objectively it is not possible to define the technical specifications and/or define the legal and/or financial elements of the object of the public procurement.

    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 fulfill 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 LZPVPJN 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 Commision (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
    In accordance with Art. 109 of ZJN2, fines varying from EUR 25 000 to EUR 100 000 may be imposed on the contracting authority for 19 different breaches, which also includes declaring the contract ineffective. Other penalties shall be imposed on a contracting authority if:
    • it awards a contract without implementing an appropriate procedure, other than in cases permitted by law;
    • it fails to observe the time limits for publication and submission of tenders stipulated in ZJN2;
    • it lays down selection criteria contrary to ZJN2;
    • it chooses the method of determining the value, in order to avoid the of public contract awards procedure for the purpose of obtaining a more favorable price;
    • where the criterion for an award is that of the most economically advantageous tender, it alters the subject matter of the public contract during the performance of the contract in such a way that the selected tender ceases to be the most economically advantageous tender due to this alteration;
    • the provisions of the public award contract diverge in their essential elements from the provisions indicated in the contract documents;
    • it awards a public contract to a tenderer from the list of tenderers with negative references.

    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 8m

    • 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).

    Ukraine
    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 Construction contracts
    Any public contractorUAH 100 000
    (approx. EUR  7 40012)
    UAH 1m
    (approx. EUR  74 000)
    UAH 300 000
    (approx. EUR  
    22 400)


    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 (which are not similar to standard EU-procedures):
      • open procedure;
      • two-stage tender (similar to the competitive dialogue under EU law);
      • price bidding (quoting);
      • preliminary qualifications (similar to the negotiated procedure under EU law);
      • procurements from a single bidder;
      • electronic reverse auction.
    • Open procedures is set forth as primary procurement procedure;
    • Two-stage tender procedure is applicable under the following conditions: (i) the contracting authority cannot identify or compile technical and qualitative requirements regarding the goods or works, or cannot define the type of services needed; (ii) when preliminary negotiations with the bidders are necessary for the authority to reach its decision and (iii) the subject of the contract concerns the execution of a scientific experiment, research or development, performance of development, design or construction works.

      At the first stage the participants are invited to provide their preliminary tender bids, including technical and economic parameters, without quoting the price. Thereafter the contracting authority enters into negotiations with the bidders to clarify the terms and make amendments to the tender documentation. During the second stage the accepted participants provide their final tender bids with price quotations.

      The two-stage procurement procedure in Ukraine is regarded as analogous to competitive dialogue under EU law.
    • Price bidding (quoting) procedure can be used for the standard goods or services where the contract value is below UAH 200 000 (approx. EUR  15 000);
    • Preliminary qualifications are applicable where it is necessary to check the bidders before the open procedure, with respect to their qualification, financial standing, technical or professional capabilities etc.
      This procedure may be considered as analogue to EU negotiated procedure.
    • A procurement from a single bidder can be possible in exceptional cases such as (i) procurement of objects of arts; (ii) procurement of goods on a market where there is no competition; (iii) if the procurement procedure was cancelled at least twice before due to an unavailability of any bidders; (iv) procurement in the course of bankruptcy procedure with the consent of the creditors etc.
    • Electronic reverse auction may be applicable by a decision of the contracting authority. This procedure must be carried out with respect to the goods, services and works specified in the list to be approved by the Cabinet of Ministers of Ukraine. However, such a list has not yet been approved.

      In fact this procedure is at a development stage in Ukraine and is currently not in use.

    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 (Art 18 Ukrainian Law on Public Procurement).

    5. What time limits exist for appeals? Are further appeals precluded after the expiry of these limits?
    Administrative review procedure:
    • Review of tender documents:
      • any time after the tender documents is officially published an until the date when the tender bid must be submitted;
    • Review of decisions or actions of the contracting authority:
      • 14 days with effect from the day the appellant is notified of the decision or action of the contracting authority but before the conclusion of the procurement contract; or
      • 14 days with effect from the day when the appellant became aware of the breach of its rights or lawful interests by the authority’s decision or action (omission) but before the conclusion of the procurement contract;
    • Review of claims relating to the electronic reverse auction procedure:
      • any time after the contract is awarded to a winner but before it is concluded;
    • Note: Administrative review procedure does not apply to concluded contracts which can be appealed only in court.

    Judicial review procedure:
    • Three years with effect from the day when the appellant became aware or could have become aware of a breach of its rights during the procurement procedure.
    • Note: In practice, court appeals almost always concern procurement contracts 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?
    • Duration of the standstill period varies depending on the type of procurement procedure:
      • for open procedure: minimum 14 days starting from the day when a notice of acceptance of the tender offer is published in the official gazette (from five (minimum) to 14 (maximum) days - for the restricted rocedure);
      • for two-stage tender and preliminary qualifications: same as for open bids;
      • for price bidding (quoting): from five (minimum) to 14 (maximum) days starting from the day a notice of acceptance of the tender offer is published in the official printed edition;
      • procurements from a single bidder: 14 days starting from the day the notice of acceptance of the tender offer is published in the official printed edition (five business days – for procurements in urgent cases or for procurements of oil, raw oil products, electric energy, energy transmission and distribution services, postal services, postal stamps and marked envelopes, telecommunication services, central water supply, railway transportation services);
      • for electronic reverse auction: 14 days starting from the day the notice of auction results was published on the e-trading auction platform.

    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 375) for claims with respect to a procurement of goods or services;
      • UAH 15 000 (around EUR 1 120) for claims with respect to a procurement of works
    • Fees paid for a judicial review:
      • statutory minimum monthly wage (currently around EUR 100)

    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 Procurements, a procurement contract is automatically ineffective if it is concluded (i) during the appeals procedure; (ii) in breach of the statutory time limits stipulated for certain steps of the procurement 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 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).

    Penalties that can be applied to the contracting authority for breaches of the procurement procedure are relatively low (up to approx. EUR 2 000).
    (12) According to the exchange rate of the National Bank of Ukraine, as of 03 March 2014 (EUR 1=UAH 13.40)
    United Kingdom
    By Caroline Hobson and Christine Graham, CMS London
    *The rules below apply only to public procurement contracts in England and Wales. Different rules apply to public procurements in Scotland and these should be consulted separately.
    1. Where can one find the public procurement notifications for the UK?
    The UK public procurement notifications can be found on Tenders Electronic Daily
    2. What are the relevant thresholds for the applicability of the Public Contracts Code?
    • The Public Contracts Regulations 2006 (as amended) (PCR) require competitive processes to be run for contracts which exceed the value thresholds and are not covered by any of the relevant exclusions or exceptions.
    • The key value thresholds from 1 January 2014 are:

    • ServicesSuppliesWorks
      Central government bodies£111 676
      (EUR 134 000)
      £111 676*
      (EUR 134 000)
      £4 322 012
      (EUR 5 186 000)
      Other public bodies£172 514
      (EUR 207 000)
      £172 514
      (EUR 207 000)
      £4 322 012
      (EUR 5 186 000)


    • *With the exception of the following services which have a threshold of £172 514 (EUR 207 000):
      • Research & Development Services;
      • the following Telecommunication services - (i) Television & Radio Broadcast services; (ii) Interconnection services; and (iii) Integrated telecommunications services; and
      • Subsidised services contracts under regulation 34.
    • The value thresholds are reset in domestic currencies every two years.

    3. Under which circumstances can one use the (i) open procedure; (ii) restricted procedure; (iii) negotiated procedure; (iv) competitive dialogue?
    ProcedureKey Features
    Open Regulation 15 of the PCR sets out the criteria for using the Open Procedure. This procedure is open to all interested parties
    No negotiation with bidders is permitted
    Suitable only for the most straightforward procurements
    RestrictedRegulation 16 of the PCR sets out the criteria for using the restricted procedure
    All interested parties can submit an expression of interest but only those meeting the pre-qualification or selection criteria will be invited to tender
    No negotiation with bidders is permitted
    Competitive DialogueRegulation 18 of the PCR sets out the criteria for using the competitive dialogue procedure
    This procedure is useful for “particularly complex contracts”
    More specifically, it is available where the contracting authority cannot in advance define the technical specification required or specify the “legal or financial make-up of the project”
    Negotiation with bidders is permitted
    NegotiatedRegulation 13 of the PCR sets out the criteria for using the negotiated procedure with notice.
    It is available:
    • if an open or restricted procedure is discontinued as a result of irregular tenders or because no acceptable tenders were made
    • for works contracts carried out solely for research or testing purposes and on a not-for–profit basis
    • where the nature of the works/services/supplies or the risks attached to them do not permit prior overall pricing
    • if specifications for a service contract cannot be established with sufficient precision to enable an open or restricted procedure to be run
    These exceptions are likely to be narrowly construed

    4. Which decisions of a contracting authority can be appealed?
    Any decision by a contracting authority can be challenged if there has been a breach of the public procurement rules.

    5. What are the time limits for appeals? Are further appeals precluded after the expiry of these time limits?
    The time limit for bringing proceedings is 30 days starting from the date when the claimant knew or ought to have known that grounds for bringing those proceedings had arisen (the “date of knowledge”), with court discretion to extend the period up to an absolute maximum of three months from the date of knowledge.

    6. How long is the standstill period?
    The standstill period is at least ten calendar days between announcing the name of the successful tenderer a with the successful tenderer.

    7. Which review bodies exist?
    Proceedings can be brought before the High Court or the High Court (Administrative) Division.
    • The High Court will review decisions where there has been a breach of specific obligations in the PCR or of EU obligations incorporated within them.
    • The High Court (Administrative) Division will review the lawfulness of a decision or action taken by a public body (judicial review).

    8. Are there any filing fees for an appeal?
    • The filing fees for bringing a High Court challenge will depend on whether one is seeking damages or other non-monetary relief (such as injunctive relief). There are three possible outcomes:
      • If the claimant is seeking damages, depending on the amount being claimed, the filing fee can range from £395 to £1 670.
      • If the claimant is seeking non-monetary relief only, the filing fee shall amount to £465.
      • If the claimant is seeking damages and non-monetary relief, the filing fee can range from £395 to £1 670 (damages fee) plus £465 (non-monetary relief).
    • There is a fee of £60 for lodging an application for Judicial Review. If permission is granted, there is a further fee of £215 to start the judicial review procedure.

    9. Does an appeal have a suspensive effect or is it necessary to apply for interim measures?
    Where a challenge is made during the 10-day standstill period (i.e. after announcement of award but before a contract is entered into), the procurement is automatically suspended.
    Where a challenge is made after the contract has been entered into, challengers may apply for interim measures (e.g an injunction, damages etc).

    10. Ineffectiveness and alternative penalties according to Dir 66/2007/EC?
    If a contracting authority either:
    • awards a contract without an Official Journal notice where one was obviously required;
    • commits a breach of the procedural rules during a tender process and deprives claimants of the opportunity to challenge the award, e.g. fails to implement a standstill period; or
    • breaches the rules on mini-competitions under dynamic purchasing systems or framework agreements,

    then the court may set the contract aside at any time in its first six months, declaring the contract “ineffective”.
    When a court declares a contract ineffective, the court must also impose a financial penalty (there is no upper limit) on the contracting authority and deal with consequential matters (for example restitution and compensation between the contracting authority and the contractor who was displaced). The contracting authority might face litigation by that displaced contractor and/or a claim for damages from the challenger. A new procurement would need to be run. Unless the court agrees on a transitional period, there would be a break in service delivery.

    If it does not find a contract ineffective, the court may still shorten the contract, impose a financial penalty on the contracting authority and/or award damages to the claimant.

    To date, no claimant has successfully brought a claim for ineffectiveness before the English courts.

    Footnotes:
    (1) Unlike order of 6 June 2005, in which only European thresholds are mentioned.
    (2) see also: Art. 7/II of decree n°2005-1308 of 20 October 2005 (regarding negotiated procedure without prior publication, being specified that the use of a negotiated procedure with prior publication is always possible in the utility services sector); Art. 33/I (negotiated procedure with prior publication) and 33/II (negotiated procedure without prior publication) decree n°2005-1742 of 30 December 2005 applying order of 6 June 2005.
    (3) Art. 44 of decree of 20 October 2005 ; Art. 46 of decree of 30 December 2005.
    (4) 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.
    (5) A list of judicial courts of first instance specialized in interlocutory procedures has been set forth by decree.
    (6) 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.
    (7) It is possible only upon request from the claimant regarding contracts of a private nature.
    (8) 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.
    (9) 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.
    (10) Approximate exchange rate: 1 EUR = 4.5 RON
    (11) Particularities which would make the summary too complex are omitted

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