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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 http://ted.europa.eu.
  • SIMAP, the European system of information on public procurement (http://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.1. What are the relevant thresholds for the applicability of the Directives?

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 contractsSorks 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 0001 000 000 (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 10 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 10 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 10 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 10 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 https://www.app.gov.al/ep/default.aspx , 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
      1 200 000 000 (approx € 8,571,428) and applies to public works contracts;
    • The low value threshold, which is equal to Albanian Lek 200 000 000 (approx € 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 € 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 200 000 000 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 200 000 000 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 7 (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 7 (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 7 (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 €107) up to a maximum of Albanian Lek 1 000 000 (approx. € 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: € 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: € 134 000 – § 12 (1) Z 1 BVergG
  • public works contracts and public works concessions: € 5 186 000 – § 12 (1) Z 3 BVergG
  • design contests by central purchasing bodies (prize money): € 130 000; in case of the other contracting authorities: € 207 000 – § 12 (2) BVergG
  • sector area
    • public supply contracts, public service contracts and design contests for obtaining public supply contracts: € 414 000 –  180 (1) Z 1 BVergG
    • public works contracts: € 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:
    • 10 days, 15 days respectively in case of postal mail – § 321 (1) BVergG
    • 7 days in case of under-limit procurements – § 321 (2) BVergG
    • 7 days in case of direct procurements – § 321 (3) BVergG
  • review of call for tender documents, participation documents and design contest documents:
    • up to 7 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 10 days, 15 days respectively in case of postal mail
  • It expires after 7 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
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 contractsworks 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:
      a) the contract does not exceed € 85 000 in the “classic sector” ;
      b) 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;
      c) if an extreme urgency due to unforeseeable events does not allow the implementation of an open or restricted procedure with prior publication ;
      d) 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 ;
      f) 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:
      a) works or services not included in the project initially considered or in the initial contract became necessary due to unforeseen circumstances;
      b) 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:
      a) the products concerned are solely made for research, experimentation, study or development purposes;
      b) 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 ;
      c) additional supplies of the same type and with the same characteristics are assigned to the provider of the initial contract due to unforeseen circumstances;
      d) supplies are quoted and purchased on a commodity market ;
      e) 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 :
      a) no suitable tenders or no regular tenders have been submitted in response to an open or restricted procedure or competitive dialogue
      b) in exceptional cases, it concerns works, supplies or services whose nature or risks do not permit prior overall pricing ;
      c) market access is reserved and the estimated amount of the contract is less than the amount fixed for European advertising ;
      d) 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, 10 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 : 5 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
    • 6 months in case of non-respect of the previous points
  • Alternative penalties: 6 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 € 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 € 1 320 but in theory, this can be up to € 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 € 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 € 1 320 and € 33 000 , Art. 8 Royal Decree 26 October 2007);
  • Council of State (suspension demand):
    • Filing fees: € 200 (Art. 70, §1 Royal Decree 30 January 2014);
    • Proceedings indemnity: (between € 140 and € 1 400 draft Royal Decree);
  • Council of State (annulment demand):
    • Filing fees: € 200 (Art. 70, §1 Royal Decree 30 January 2014)
    • Proceedings indemnity : between € 140 and € 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 2 000 000 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:

a) 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 9 000 000 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 9 000 000 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 5 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)

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