Public Procurement Act

Note: Present Act is shown here just for your general information and does not pretend for any accuracy, exactness or completeness. Printing mistakes are possible.

(last amended 29.09.2006)

Part One

COMMON RULES

Chapter One

GENERAL DISPOSITIONS

Section I

Purpose and Principles

Article 1. This Act establishes the principles, terms and procedure for the award of public procurements for the purpose of ensuring efficiency in the spending of on-budget and off-budget resources, as well as of the resources associated with the carrying out of relevant public activities specified in the Act.

Article 2. (1) Public procurements shall be awarded according to the procedures established in this Act, in accordance with the following principles:

1. public openness and transparency;

2.  free and fair competition;

3.  equality and non-discrimination.

(2)  Where a contracting authority grants special or exclusive rights to carry out a public service activity to a person other than a contracting authority, the act by which these rights are granted shall provide that, in respect of the supply contracts which it awards to third parties as part of its activities, the person concerned must comply with the principle of non-discrimination on the basis of nationality.

Section II

Public Procurement Subject Matter and Parties

Article 3. (1) The following shall be subject matter of public procurement:

1.  supply of goods, performed by means of purchase, lease, rental with or without option to buy, or hire purchase, as well as all preliminary operations as shall be necessary for the actual use of the products, such as installation, testing of machinery and plant, etc.;

2. provision of services;

3. works, including:

(a) building or civil engineering (design and construction) of building works;

(b)  realization or design and execution, by whatever means, of one or several construction and erection works covered under Annex 1 hereto, related to the construction, redevelopment, remodelling, maintenance, restoration or rehabilitation of buildings or construction facilities;

(c)  integrated engineering services and realization, by whatever means, of one or more activities related to construction of building works in compliance with the requirements of the contracting authority, such as feasibility study, design, organization of building, supply and installation of machinery, plant and technical equipment, preparation and commissioning of works.

(2) (rep.)

Article 4. The following shall not be subject matter of public procurement:

1.  the acquisition or rental of land, existing buildings or other corporeal immovables, as well as the creation of limited rights in rem, with the exception of the financial services in connection with such transactions;

2. the acquisition, development, production and co-production of programme material by radio and television broadcasters and the provision of broadcasting time;

3. the financial services in connection with the issue and transfer of securities or other financial instruments; the services provided by the Bulgarian National Bank; the services provided in connection with the management of the government debt, upon purchase and certification of produce, approval of warehouses for storage and conduct of auctions for sale with intervention on the farm produce markets under the Agricultural Producers Support Act;

4.  the scientific research and experimental developments, where the contracting authority wholly remunerates the service but the benefits from the said research and development do not accrue exclusively to the contracting authority in the conduct of its own affairs;

5. the choice of arbitration and conciliation services;

6.  the labour agreements.

Article 5. (1) Depending on the award procedure thereof, public procurements of services shall be grouped into:

1.  public procurements of services included in Annex 2 hereto, which are awarded according to:

(a) an open or restricted procedure by contracting authorities covered under Items 1 to 4 of Article 7 herein;

(b) an open procedure, a restricted procedure or a negotiated procedure with publication of a contract notice by contracting authorities covered under Items 5 and 6 of Article 7 herein;

2.  public procurements of services included in Annex 3 hereto, which are awarded according to an open procedure, a restricted procedure or a negotiated procedure with publication of a contract notice.

(2)  A public procurement, which includes simultaneously any services included in Annexes 2 and 3 hereto, shall be awarded according to the procedure provided for the services whereof the value is higher.

Article 6.  The following shall be parties to public procurement award procedures: the contracting authorities, the candidates and tenderers, and the suppliers, contractors and service providers.

Article 7.  The following shall be contracting authorities:

1. the bodies of State power, the President of the Republic ofBulgaria, the Bulgarian National Bank, as well as other institutions of State established by a statutory instrument;

2. the diplomatic missions and the consular posts of the Republic of Bulgaria abroad, as well as the permanent missions of the Republic of Bulgaria to the international organizations;

3. the bodies governed by public law;

4. the combinations formed by parties referred to in Item 1 or 3;

5. the public undertakings and any combinations thereof, where carrying out one or several of the activities covered under Articles 7a to 7e herein;

6. the merchants and other persons which are not public undertakings, where carrying out one or several of the activities covered under Articles 7a to 7e herein on the basis of special or exclusive rights.

Article 7a.  (1) The following shall be activities relating to natural gas, heat or electricity:

1. the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of: drinking water, electricity, natural gas or heat, or

2. the supply of natural gas, heat or electricity to such networks.

(2) The supply of natural gas or heat to fixed networks which provide a service to the public shall not be considered a relevant activity within the meaning given by Paragraph (1) where:

1. the production of natural gas or heat is the consequence of carrying out an activity other than the activities referred to in Paragraph (1) or in Articles 7b to 7e herein, and

2. supply to the public network is aimed only at the economic exploitation of the production of natural gas or heat, subject to the condition that the amount of the supplies does not exceed 20 per cent of the producer's average annual turnover for the preceding three years, including the current year.

(3) The supply of electricity to networks which provide a service to the public shall not be considered a relevant activity within the meaning given by Paragraph (1) where:

1. the production of electricity is intended for carrying out an activity other than the activities referred to in Paragraph (1) or in Articles 7b to 7e herein, and

2. supply to the public network depends only on the producer's own consumption and has not exceeded 30 per cent of the producer's average annual production for the preceding three years, including the current year.

Article 7b.  (1) The following shall be activities relating to drinking water:

1. the provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of drinking water; or

2. the supply of drinking water to such networks.

(2) The persons which pursue an activity referred to in Paragraph (1) shall also apply the provisions of this Act to any activities relating to:

1. irrigation, land drainage or other hydraulic engineering projects, provided that the volume of water to be used for the supply of drinking water represents more than 20 per cent of the total volume of water made available by such activities, or

2. the disposal or treatment of sewage

(3) The supply of drinking water to fixed networks which provide a service to the public shall not be considered a relevant activity within the meaning given by Paragraph (1) where:

1. the production of drinking water is necessary for carrying out an activity other than the activities referred to in Paragraph (1) or in Article 7a, Articles 7c to 7e herein, and

2. supply to the public network depends only on the producer's own consumption and has not exceeded 30 per cent of the producer's average annual production for the preceding three years, including the current year.

Article 7c.  (1) Activities relating to transport services shall be the operation of networks providing a service to the public in the field of transport by railway, tramway, trolley bus or bus, as well as of automated transport systems or cableway.

(2) Providing bus transport services to the public, where other parties are free to provide such services under the same conditions as the contracting authority, shall not be considered a relevant activity within the meaning given by Paragraph (1) herein.

Article 7d.  (1) Activities connected with the provision of a universal postal service shall be the services provided for in Article 34 of the Postal Services Act.

(2) The persons carrying out the activities referred to in Paragraph (1) shall apply the provisions of the Act for all the activities thereof.

Article 7e.  The following shall be activities relating to exploitation of a geographical area:

1. prospecting or exploring for or extracting oil, natural gas, coal or other solid fuels;

2. the operation of airports, maritime or inland ports or other terminal facilities used for carriage by air, sea or by inland waterway.

Article 8. (1)  Contracting authorities shall be obligated to conduct a public procurement award procedure where the grounds provided for in the law exist.

(2) Contracting authorities or officials authorized thereby shall organize and conduct the public procurement award procedures and shall conclude public procurement contracts. Authorization may not be used for the purpose of splitting the procurement.

(3)  Where the contracting authority is a collective authority, the powers referred to in Paragraph (2) shall be implemented by the person who represents the said authority.

(4) Acting on a motion by the Minister of Economy and Energy, the Council of Ministers may establish a central purchasing body for the needs of the executive authorities, and the municipality mayors may establish a central purchasing body for the needs of the municipalities.

(5)  The central purchasing body shall be a contracting authority which can conduct procedures and conclude public procurement contracts or framework agreements.

(6) Two or more than two contracting authorities may adopt a decision on conduct of a joint procedure for a public procurement award.

Article 9.  Any Bulgarian or foreign natural or legal person, as well as any combination of such persons, may be a candidate or tenderer in a public procurement procedure.

Article 10.  A public procurement supplier, contractor or service provider shall be a tenderer in a public procurement award procedure wherewith the contracting authority has concluded a public procurement contract.

Article 11.  The acts of public-procurement contracting authorities, adopted in connection with the public procurement award procedures, shall be individual administrative acts.

Article 12. (1) This Act shall not apply to:

1.  any contracts or the award of a construction concession within the meaning given by the Concessions Act;

2. any contracts which the contracting authorities covered under Item 5 or 6 of Article 7 herein conclude in connection with an activity other than the activities covered under Articles 7a to 7c and in Article 7e, or in connection with any such activities which are pursued in a third country and which does not involve the use of a network or geographical area within a Member State of the European Union;

3.  any supply contracts concluded by a contracting authority covered under Item 5 or 6 of Article 7 herein for purposes of resale or hire of the subject of the contract to third parties, provided that the contracting authority enjoys no special or exclusive right to sell or hire the subject of such contracts and other entities are free to carry out the said activity under the same conditions [as the contracting authority];

4.  any contracts for the supply of energy or of fuels for the production of energy, concluded by contracting authorities covered under Item 5 or 6 of Article 7 herein, carrying out an activity under Article 7a herein;

5.  any contracts for the supply of water, concluded by contracting authorities covered under Item 5 or 6 of Article 7 herein, carrying out activities under Article 7b herein;

6. any service, supplies or works contracts concluded by a contracting authority referred to in Item 5 or 6 of Article 7 herein with an affiliated undertaking, provided that at least 80 per cent of the average annual turnover of the said undertaking with respect to services, supplies or works arising within the Republic of Bulgaria for the preceding three years derives from the provision of such services, supplies or works to undertakings wherewith the said undertaking is affiliated;

7. any contracts awarded by a joint venture, formed by a number of contracting authorities for the purpose of carrying out an activity covered under Articles 7a to 7e herein, to any of the partners in the said joint venture;

8.  any contracts awarded by a partner in a joint venture, formed by a number of contracting authorities for the purpose of carrying out an activity covered under Articles 7a to 7e herein, to the said joint venture, provided that the said joint venture has been formed in order to carry out the activity concerned over a period of at least three years and that the instrument setting up the said joint venture stipulates that the contracting authorities which form it will be part thereof for the same period;

9. any service contracts awarded by a contracting authority to another contracting authority referred to in Items 1 and 3 of Article 7 herein or to an association of such contracting authorities which enjoy exclusive rights to provide such services by virtue of a law, a statutory instrument of secondary legislation or an administrative act; the act conferring the exclusive rights shall be issued in compliance with the provisions of the Treaty establishing the European Community;

10. any supply, service or works contracts financed by more than 50 per cent by other States or by international or foreign organizations, where the provider of the financing has selected or has indicated the manner of selection of the supplier, contractor or service provider;

11. any contracts of the National Health Insurance Fund for medicinal drugs under Article 45 (6) of the Health Insurance Act.

(2)  In the cases under Item 6 of Paragraph (1), where the turnover of the affiliated undertaking is not available for the preceding three years because of the date on which the said undertaking was created or commenced activities, it will be sufficient for the business projections of the said undertaking to show that at least 80 per cent of the average annual turnover thereof is to derive from the provision of supplies, services or works to affiliated undertakings.

(3)  Where more than one undertaking affiliated with the contracting authority provides the same or similar services, supplies or works, the percentage referred to in Item 6 of Paragraph (1) shall be calculated taking into account the total turnover deriving respectively from the provision of services, supplies or works by those affiliated undertakings.

(4) Contracting authorities shall notify the Public Procurement Agency when requested thereby of:

1.  the cases whereto the exceptions covered under Item 2 of Paragraph (1) are applied;

2. the subject of the contracts referred to in Item 3 of Paragraph (1);

3.  the name of the affiliated undertaking, the subject matter and the value of the contract, as well as the proofs of existence of circumstances referred to in Items 6, 7 and 8 of Paragraph (1) in the cases where the said exceptions apply.

Article 13. (1)  This procedures under this Act shall not apply to any public procurements:

1.  associated with national defence or national security within the meaning given by Article 296 of the Treaty establishing the European Community;

2.  which are a subject of classified information constituting a state secret, or where the performance of the public procurement must be accompanied by special security measures in accordance with the effective legislation;

3. upon implementation of an international treaty, concluded in compliance with the provisions of the Treaty establishing the European Community, between the Republic of Bulgaria and a third party, providing for supplies, services or works intended for joint implementation or operation by the signatories thereto;

4. awarded according to a special procedure established by an international organization, where the said organization provides more than 50 per cent of the financing;

5. awarded in implementation of an international treaty associated with the deployment of troops and support for the participation of armed forces and police contingents in international missions and exercises.

(2)  The terms and a procedure for the award of public procurements in the cases referred to in Items 1 and 2 of Paragraph (1) shall be established by an ordinance adopted by the Council of Ministers on a motion by the Minister of Interior, the Minister of Defence, the Minister of Economy and Energy and the Minister of Finance. The said ordinance shall furthermore establish the terms and a procedure for conclusion of compensatory (offset) arrangements, as well as the cases in which the said arrangements shall be admissible.

(3)  In the cases referred to in Items 3 and 4 of Paragraph (1), the contracting authorities shall notify the Public Procurement Agency of the contracts concluded within seven days.

Article 14. (1) The terms and procedure for public procurement awards, established in this Act, shall be applied mandatorily upon award of public procurements which have the following values, net of value added tax:

1. in respect of works: not less than BGN 1,800,000 and, where the place of performance of the procurement is outside Bulgaria, not less than BGN 5,000,000;

2. in respect of supplies: not less than BGN 150,000 and, and, where the place of performance of the procurement is outside Bulgaria, not less than BGN 250,000;

3. in respect of services: not less than BGN 90,000 and, where the place of performance of the procurement is outside Bulgaria, not less than BGN 250,000;

4. design contest: not less than BGN 30,000.

(2)  Upon award of a public procurement including simultaneously supply of goods and provision of services, Item 3 of Paragraph (1) shall apply where the value of the services exceeds the value of the goods.

(3)  Where the subject matter of a public procurement is the provision of services but it also includes works which are incidental to the principal subject matter of the procurement, the said procurement shall be awarded as a public procurement of services.

(4) Where contracting authorities covered under Items 1 to 4 of Article 7 herein finance a works contract by more than 50 per cent, the persons who receive the financing and award the contract shall be obligated to comply with this Act where the total value of the said contract, net of value added tax, is above the threshold fixed in Item 1 of Paragraph (1).

(5) Where contracting authorities covered under Items 1 to 4 of Article 7 herein finance by more than 50 per cent a service contract which is related to a works contract under Paragraph (3), the persons who receive the financing and award the service contract shall be obligated to comply with the provisions of this Act where the total value of the said contract, net of value added tax, is above the threshold fixed in Item 3 of Paragraph (1).

(6)  In the cases under Paragraphs (4) and (5), the contracting authorities shall be obligated to exercise control over the persons who have received the financing as to compliance with this Act.

(7) (Renumbered from Paragraph (5) and amended, SG No. 37/2006) The terms and a procedure for the award of public procurements below the thresholds fixed under Paragraph (1) shall be established by an ordinance adopted by the Council of Ministers on a motion by the Minister of Economy and Energy.

Article 15. (1) The value of a public procurement shall be fixed as of the date of the decision to initiate a public procurement award procedure.

(2) For establishment of the public procurement award procedure under Article 14 herein, the value of the public procurement shall be calculated as follows:

1. with regard to a supply contract for the lease, rental with or without option to buy, as well as for hire purchase, where the term of the said contract:

(a)  is one year or less: the total contract value for the duration of the contract;

(b)  is more than one year: the total contract value for the duration of the contract, including the estimated residual value of the procurement;

(c)  in not fixed or cannot be defined: the monthly value multiplied by 48;

2. with regard to regular supply and/or service contracts, on the basis of:

(a) the total actual value of similar contracts, concluded over the previous fiscal year and adjusted for anticipated changes in quantity or value of the relevant supply or service; or

(b) the total estimated value of the supply and/or the services during the twelve months following the first delivery or service or for the duration of the supplies and/or services, where the said duration is greater than twelve months;

3.  with regard to a supply, service and/or work contract providing for options: the maximum permitted total value, including use of the option clauses;

4. with regard to a service contract which does not indicate a total price:

(a) if the term of the contract is fixed at four years or less: the total contract value for the duration of the contract;

(b)  if the term of the contract cannot be fixed in advance or the term of the contract is greater than four years: the value of the monthly installment multiplied by 48;

5.  with regard to an insurance service contracts the insurance premium payable and other forms of remuneration;

6.  with regard to a financial service contract: the price of the service, inclusive of fees, commissions or interest and other forms of remuneration;

7. with regard to a service contract preceded by a design contest, as well as with regard to design contests followed by a service contract, the value shall be calculated on the basis of the price of the service and the total value of the contest prizes and other payments to participants in the contest;

8. with regard to a works contract: on the basis of the value of construction and supply of all goods and provision of all services for execution of the works, where provided by the contracting authority;

9. with regard to a design contest: the value of the procurement shall include the total value of the contest prizes and other payments to participants in the contest;

10.  with regard to a framework agreement or a dynamic purchasing system: on the basis of the maximum estimated value, net of value added tax, of all the contracts envisaged to be concluded for the total term of the said agreement or system.

(3)  For the purpose of calculating the value of a public procurement, account shall be taken of all payments, net of value added tax, to the supplier, contractor or service provider of the public procurement, including any form of options provided for and any renewal of the service or work under Item 9 of Article 90 (1) and Item 8 of Article 103 (2) herein.

(4)  Where a public procurement is subdivided into several lots, each one the subject of a contract, the value of the procurement shall equal the sum total of the values of all lots. Where the aggregate value of the lots is equal to or exceeds the thresholds fixed under Article 14 (1) herein, the procedure applicable to the total value of the procurement shall be complied with upon award of the procurement for each lot.

(5) The selection of a method for calculation of the public procurement contract value may not be used with the intention of avoiding the application of this Act.

(6) It shall be inadmissible to split up a public procurement with the intention of circumventing the application of this Act, even in stage-by-stage construction, where the completed stage cannot be granted a use permit as a self-contained building work.

(7)  When calculating the value of a works contract, it shall be inadmissible to include supplies or services which are not necessary for executing the said contract.

Section III

Types of Procedure

Article 16. (1) Public procurements shall be awarded by means of conduct of an open procedure, a restricted procedure, a competitive dialogue and negotiated procedures.

(2) (rep.)

(3) (rep.)

(4) An open procedure shall be a procedure whereby all interested parties may submit a tender.

(5) A restricted procedure shall be a procedure whereby only qualified candidates invited by the contracting authority may submit a tender.

(6)  A competitive dialogue shall be a procedure in which any interested party may request to participate and whereby the contracting authority conducts a dialogue with the qualified candidates admitted to that procedure, with the aim of developing one or more suitable alternatives capable of meeting the requirements of the contracting authority, and on the basis of which the contracting authority invites the candidates with suitable alternatives to tender.

(7) The negotiated procedures shall be:

1.  a negotiated procedure with publication of a contract notice, whereby the contracting authority conducts negotiation for determination of the terms of the contract with one or more qualified participants selected by the contracting authority;

2. a negotiated procedure without publication of a contract notice, whereby the contracting authority conducts negotiations for determination of the terms of the contract with one or more specific persons.

(8) The contracting authorities covered under Items 1 to 4 of Article 7 herein shall make a decision on the award of a public procedure according to an open and restricted procedure wherever the conditions for conduct of a competitive dialogue or negotiated procedures do not exist.

Article 16a.  A design contest shall be a procedure whereby the contracting authority acquires a plan or design selected by an independent jury after being put out to competition with or without the award of prizes.

Article 16b.  (1) Contracting authorities may select a supplier, contractor and service provider of a public procurement according to an open or restricted procedure or a negotiated procedure with publication of a contract notice in the cases referred to in Item 1 of Article 84 herein by means of using an electronic auction, as well as in the cases referred to in Article 93c (2) and Article 93i herein, when the technical specifications of the public procurement can be established with precision.

(2) Public procurements of services and works, having as their subject-matter intellectual performances, such as the design of works, may not be the object of an electronic auction.

(3) The decision to hold an electronic auction shall be stated in the contract notice.

(4) An electronic auction may not be used if it prevents, restricts or distorts competition, nor can it be used to change the subject matter of the procurement as put up for tender in the published contract notice and as designed in the specification.

(5) The terms and procedure for use of electronic auctions shall be regulated by the Regulations for Application of this Act.

Article 16c.  (1) The contracting authority shall reserve the right to participation in public procurement award procedures for specialized undertakings and cooperatives of persons with disabilities where the subject matter of the procurement is included in a list endorsed by the Council of Ministers or the procurement is performed under sheltered employment programmes for persons with disabilities.

(2) The contracting authority must state the requirement referred to in Paragraph (1) in the public procurement initiation notice.

Chapter Two

AUTHORITIES. PUBLIC PROCUREMENT REGISTER

Section I

Authorities

Article 17.  The Minister of Economy and Energy shall implement the State policy in the sphere of public procurement.

Article 18. (1)  There shall be established a Public Procurement Agency with the Minister of Economy and Energy, hereinafter referred to as "the Agency," to assist the said Minister in the implementation of the state policy in the sphere of public procurement.

(2) The Agency shall be a legal person with a head office in Sofia.

(3)  The maintenance of the Agency shall accrue from budget revenue and own income from activities related to the elaboration of aids and provision of services in the sphere of public procurement.

(4) The operation, structure, organization of work and staff size of the Agency shall be determined by Rules of Operation adopted by the Council of Ministers.

Article 19. (1)  The Agency shall be managed and represented by an Executive Director, who shall be appointed by the Minister of Economy and Energy.

(2) The Executive Director of the Agency shall perform the following functions:

1. issue methodological directions on the application of this Act and of the acts of secondary legislation thereto related;

2. alert the competent authorities so as to exercise control over compliance with the Act;

3.  reacting to an alert received, lodge an appeal to the Commission for the Protection of Competition against procedure initiation notices containing conditions or requirements which grant an advantage or unjustifiably restrict the participation of persons in public procurements;

4. bring court actions for annulment of public procurement contracts in case of violation of the law;

5.  elaborate drafts of statutory instruments and give opinions on international treaties in the sphere of public procurement;

6. keep a Public Procurement Register;

7. maintain lists of contracting authorities covered under Article 7 herein and notify the European Commission of any changes in the said lists;

8.  maintain, with the assistance of the professional associations and organizations in the relevant sector, a list of persons whom contracting authorities may recruit as outside experts upon conduct of public procurement award procedures;

9.  elaborate standard forms for notices, for statistical reports and for information on public procurement awards and on design contests held;

10.  coordinate the activity related to training of parties to public procurement;

11. participate in the international cooperation of the Republic ofBulgaria with organizations in other countries in the sphere of public procurement;

12.  submit an annual report on the operation of the Agency to the Minister of Economy and Energy;

13.  collect and summarize the case law on application of this Act and carry out monitoring of public procurement;

14.  pursue cooperation in the sphere of public procurement with branch organizations;

15.  provide summarized information from the Public Procurement Register under pre-set criteria;

16.  assist the process of public procurement award by electronic means;

17. notify the European Commission of all contracts referred to in Item 3 of Article 13 (1) herein;

18. upon request, transmit the information referred to in Article 12 (4) herein to the European Commission;

19. transmit annual statistical reports to the European Commission;

20. notify the European Commission of any difficulties, in law or in fact, encountered in connection with participation of Bulgarian persons in public procurement award procedures for services in third countries;

21. notify the European Commission of any difficulties, in law or in fact, encountered in connection with participation of Bulgarian persons in public procurement award procedures in third countries which are due to non-observance of the international labour law provisions;

22. acting on his or her own initiative or at the request of the contracting authority, may designate experts of the Agency to participate, in an observer status, in the conduct of procedures for the award of public procurements of a value exceeding the values specified in Article 45a (1) and (2) herein;

23.  popularize good practices in the sphere of public procurements.

(3) In connection with the execution of the powers thereof, the Executive Director of the Agency shall have the right to require the necessary information from public-procurement contracting authorities.

(4) Contracting authorities shall be obligated to provide the information required under Paragraph (3) within a time limit set by the Executive Director of the Agency.

(5)  The information referred to in Items 1, 6 to 8, 12 and 13 of Paragraph (2), as well as the endorsed standard forms referred to in Item 9 and the Public Procurement Classifier shall be posted on the Internet.

(6)  Annually, on or before the 31st day of March, the Minister of Economy and Energy shall lay the annual report referred to in Item 12 of Paragraph (2) before the Council of Ministers for approval.

(7)  The standard forms referred to in Item 9 of Paragraph (2) shall be endorsed by the Minister of Economy and Energy and shall be promulgated in the State Gazette.

Article 20.  (1) The Executive Director shall exercise the power vested therein under Item 3 of Article 19 (2) herein until expiry of the time limit for receipt of:

1. tenders or projects: applicable to an open procedure or an open design contest;

2. requests to participate: applicable to the rest of the procedures.

(2) The Executive Director shall exercise the power vested therein under Item 3 of Article 19 (2) herein if the alert of the violation was received not later than ten days before expiry of the time limits referred to in Paragraph (1).

Article 20a.  (1) The observers referred to in Item 22 of Article 19 (1) herein shall attend the proceedings of the commission appointed by the contracting authority upon conduct of a public procurement award procedure and shall see to the observance of the requirements of the law.

(2) The Executive Director of the Agency shall send the contracting authority an opinion regarding the work of the commission upon each procedure in which observers participate.

(3) The procedure for designation of observers and the rules for the work thereof shall be established in the Regulations for Application of this Act.

Section II

Public Procurement Register

Article 21. (1) There shall be established a Public Procurement Register.

(2) The Public Procurement Register shall be open to public inspection.

(3) Contracting authorities shall be obligated to transmit the information envisaged for entry into the Public Procurement Register to the Executive Director of the Agency.

(4)  Contracting authorities shall be obligated to present statistical reports on the public procurement awards according to a procedure established by the Regulations for Application of this Act.

Article 22. The Public Procurement Agency shall contain:

1.  the decisions to initiate and to terminate public procurement award procedures, as well as the decisions to extend the time limit for submission of tenders or requests to participate;

2. the notices envisaged for entry into the Register;

3. the information on public procurement awards;

4. any other information as shall be specified in the Regulations for Application of this Act.

Part Two

PUBLIC PROCUREMENT AWARD

Chapter Three

COMMON RULES FOR PUBLIC PROCUREMENT AWARD

Section I

Prior Information Notice

Article 23. (1) Contracting authorities shall dispatch a prior information notice of all public procurement award procedures which they envisage initiating during the next succeeding twelve months to the State Gazette for publication on the Internet site thereof and to the Agency for entry into the Public Procurement Register or shall publish such prior information notice on the buyer profile:

1. for supply of goods and for services under Item 1 of Article 5 (1) herein, differentiated by category, where the total value, net of value added tax, for the relevant category of goods or services, is equal to or greater than BGN 450,000;

2. for works, where the total value of the procurement, net of value added tax, is equal to or greater than the thresholds referred to in Item 1 of Article 14 (1) herein.

(2)  When publishing prior information notices on the buyer profile, contracting authorities shall send the Agency and the State Gazette, electronically, a communication in an endorsed standard form. Prior information notices may not be published on the buyer profile before the date of dispatch of the said communication.

(3)  In the case of supplies and services, the notices referred to in Paragraph (1) and the communication referred to in Paragraph (2) must be dispatched on or before the 1st day of March.

(4) Where contracting authorities intend to take the option of shortening the time limits under Article 64 (2) herein, they shall furthermore transmit a prior information notice of public procurements where the total value, net of value added tax, is not greater than the values referred to in Paragraph (1).

(5) In the cases referred to in Item 1 of Paragraph (1), the category of goods shall be determined by contracting authorities by reference to the nomenclature of the Public Procurement Classifier, and the category of services shall be determined according to Annex 2 hereto.

(6) Publication of a prior information notice shall not bind the contracting authority to conduct the relevant public procurement award procedures.

Article 24.  A prior information notice must be based on the standard form referred to in Article 19 (7) herein and the length thereof must not be greater than 650 words. Contracting authorities shall dispatch any such notice to the State Gazette and to the Agency by electronic means as well.

Section II

Decision to Initiate Public Procurement Award Decision and Contract

Notice

Article 25. (1) The contracting authority shall adopt a decision to initiate a public procurement award procedure, whereby the said authority shall approve the contract notice and the contract documents. Any such decision and notice shall be dispatched to the Agency for entry into the Public Procurement Agency on an electronic data medium as well.

(2) A contract notice shall include at least the following information:

1. name, address, telephone and facsimile numbers and electronic mail address of the contracting authority, and contact person;

2. type of procedure;

3. subject matter of procurement and quantity or scope, including such information about lots;

4. reference number according to the nomenclature of the Public Procurement Classifier;

5. place and time limit for performance of the procurement;

6.  minimum requirements for the economic and financial standing of the candidate or tenderer, for the technical capacity and qualifications thereof, where the contracting authority establishes such requirements, as well as the references required to be provided in evidence;

7. terms and amount of the participation guarantee and of the contract performance guarantee;

8. terms and method of payment;

9. period of tender validity;

10. criteria to be applied in the evaluation of tenders;

11.  indication of the possibility of submitting variants in the tenders;

12.  indication of the possibility of the tenderers tendering for one, for several or for all the lots, where the subject matter of the procurement is subdivided into lots;

13. address wherefrom the contract documents can be requested and the final date for making such a request, the price and method of payment of the price to be paid for such documents;

14. address whereat requests or tenders must be received, and time limit for the receipt thereof;

15. place and hour of the opening of tenders;

16. date of publication of the prior information notice referred to in Article 23 herein, if any;

17. date of dispatch of the notice.

(3) In the notice, the contracting authority may furthermore provide for:

1.  the possibility of holding an electronic auction;

2. a requirement to establish a legal person where the tenderer which has been selected as supplier, contractor or service provider is a combination of natural and/or legal persons; the newly established legal person shall be bound by the tender submitted by the combination;

3. (rep.)

4. criteria for arrival at the integral evaluation of the tender, where the criterion of the most economically advantageous tender applies in the evaluation of the tenders.

(4)  In restricted procedures, negotiated procedures with publication of a contract notice and competitive dialogue procedures, contracting authorities may limit the number of candidates which will be invited to tender, to negotiate or to conduct a dialogue, provided a sufficient number of suitable candidates is available. In such cases, the notice shall indicate objective and non-discriminatory criteria or rules that contracting authorities intend to apply, the minimum number of candidates which will be invited and, at the discretion of the contracting authority, the maximum number as well.

(5) No terms or requirements offering an advantage or unjustifiably restricting the participation of any parties in the public procurements may be included by contracting authorities in the decision, notice, or documents.

(6) The requirements referred to in Item 6 of Paragraph (2), the scope of information and the documents required according to the notice must take account of and conform to the complexity of the subject matter and of the volume of the public procurement.

Article 26. (1) In the notice referred to in Article 25 herein, the contracting authority may furthermore establish additional requirements for the performance of the public procurement related to environmental protection, unemployment and creation of jobs for persons with disabilities, while complying with the requirements referred to in Article 25 (5) herein.

(2)  In the cases under Paragraph (1), upon preparing the tender the tenderers shall indicate, inter alia, the way of fulfilment of the additional requirements.

Article 27. (1)  The length of the notice referred to in Article 25 (2) herein shall not be greater than 650 words and must be based on the standard form referred to in Paragraph 7 of Article 19 herein.

(2)  The contract notice shall be dispatched on an electronic data medium and shall be published on the Internet site of the State Gazette not later than five days after the dispatch thereof.

(3)  After publication of the notice in the State Gazette, the contracting authority may furthermore insert an advertisement of the public procurement in one local newspaper or a national daily newspaper. Any such advertisement shall state, at a minimum, the subject matter of public procurement and the date of publication of the notice on the Internet site of the State Gazette, and may not contain any information which was not included in the said notice.

Section III

Contract Documents

Article 28. (1) The contract documents for participation in a public procurement award procedure must contain:

1. the decision to initiate a public procurement award procedure;

2. the contract notice;

3. a complete description of the subject matter of procurement, including such information about lots;

4. the technical specifications;

5.  the minimum requirements to be met by the variants and the specific requirements for the presentation thereof, where the contracting authority authorizes variants;

6. the development-project designs, where required upon a public procurement of works;

7. the criteria to be applied in the evaluation of tenders, the relative weighting to be given to each such criterion, and the methods for arrival at the integral evaluation of the tender, where the criterion of the most economically advantageous tender applies;

8. a standard form of the tender, as well as directions for drawing up of the tender;

9. the draft of a contract.

(2) The methods referred to in Item 7 of Paragraph (1) shall contain precise directions on arrival at an evaluation under each criterion and on arrival at an integral evaluation of the tender, including the relative weighting given by the contracting authority to each of the criteria chosen to determine the most economically advantageous tender to each of those criteria. The relative weighting given to the separate criteria can be expressed by providing for a range with an appropriate maximum spread.

(3)  The price of the contract documents may not exceed the actual costs of the preparation thereof. At the request of an interested party, the contracting authority may not refuse to send the documents for the account of the person who made the request.

(4)  The contract documents may be purchased until expiry of the time limit fixed for submission of the tenders or requests to participate. The persons shall have the right to examine the documents on site before purchasing the said documents.

Article 29. (1)  Within ten days before expiry of the time limit fixed for submission of tenders or requests to participate, the persons may request in writing additional information relating to the contract documents from the contracting authority. The contracting authority shall be obligated to reply within three days after receipt of any such request.

(2) The contracting authority shall dispatch any additional information referred to in Paragraph (1) to all persons who or which have purchased the contract documents and who or which have indicated a mailing address, without identifying the inquiring person in the reply thereof. Any such additional information shall furthermore be attached to the contract documents which are to be purchased by other candidates or tenderers.

Section IV

Technical Specifications

Article 30.  (1) The contracting authority shall give the technical specifications in the contract documents, defining the said specifications by reference to:

1. Bulgarian standards, which transpose European, international standards, European technical approvals or common technical specifications, or other technical reference systems established by the European standardization bodies, accompanying the said indication by the words "or equivalent";

2. Bulgarian standards, technical approvals or specifications, regarding design, method of calculation and execution of works, as well as use of materials, accompanying the said indication by the words "or equivalent" where standards referred to in Item 1 do not exist;

3. performance characteristics or functional requirements referred to in Item 3, which must be sufficiently precise to determine the subject matter of the procurement; functional requirements may include environmental characteristics;

4. performance characteristics or functional requirements referred to in Item 3, with reference to the specifications referred to in Item 1 or 2, the conformity with which shall be presumed conformity with such performance characteristics or functional requirements;

5. the specifications referred to in Item 1 or 2 for certain characteristics and by referring to the performance characteristics or functional requirements referred to in Item 3 for other characteristics.

(2) In the cases referred to in Item 3 of Paragraph (1), where the contracting authority has laid down environmental characteristics in terms of performance characteristics or functional requirements, the contracting authority may use specifications or parts thereof as defined by European or national eco-labels, or by any other eco-label, which simultaneously meet the following conditions:

1. the specifications are appropriate to define the characteristics of the supplies or services;

2. the requirements for the label are drawn up on the basis of scientific information;

3. the eco-labels are adopted using a procedure in which all stakeholders: State bodies, consumers, manufacturers, distributors and environmental organizations, can participate;

4. are accessible to all interested parties.

(3) The contracting authority may indicate that the products and services bearing the eco-label are presumed to comply with the technical specifications laid down in the contract documents for participation in a public procurement award procedure.

(4) In the cases covered under Paragraph (2), the contracting authority shall accept, as means of proof, the technical dossier of the manufacturer or a test report or a certificate issued by a recognized body.

Article 31.  (1) Upon provision of technical specifications to candidates or tenderers in the procedure and upon conclusion of a public procurement contract, the contracting authority may designate which part of the information made available thereby to the said candidates or tenderers is of a confidential nature.

(2) The candidates or tenderers shall have no right to disclose the information referred to in Paragraph (1).

Article 32. (1)  The technical specifications must afford the candidates or tenderers equal access to participation in the procedure and must not unjustifiably hinder competition.

(2)  The technical specifications must not be defined by reference to a specific make, source, a particular process, trade mark, patent, type, a specific origin or production with the effect of favouring or eliminating certain persons or certain products. Such reference shall be permitted on an exceptional basis, where a precise and intelligible description of the subject matter of the procurement according to the procedure established by Article 30 herein is not possible, and any such reference shall mandatorily be accompanied by the words "or equivalent".

Article 33. (1) In the cases covered under Item 1 or 2 of Article 30 (1) herein, the contracting authority may not exclude a tender on the grounds of non-conformity of the products or services tendered to the technical specifications defined by the said authority, provided that the tenderer prove in the tender thereof that the solution proposed thereby complies with the requirements defined in the said technical specifications.

(2)  In the cases covered under Article 30 (2) herein, the contracting authority may not exclude a tender which conforms to a Bulgarian standard transposing a European standard, a European technical approval, a common technical specification, an international standard or a technical reference system established by a European standardization body, if the tenderer proves in the tender thereof that the said standards relate to the performance characteristics and functional requirements defined by the contracting authority.

(3)  In the cases referred to in Paragraphs (1) and (2), the tenderer shall furnish as evidence a technical dossier of the manufacturer or a test report or a certificate issued by a recognized body.

(4)  Upon submission of the tender, the tenderer may designate which part of the said tender is of a confidential nature and may impose requirements of non-disclosure of the said part on the contracting authority.

(5)  The contracting authority shall have no right to disclose any information made available thereto by candidates and tenderers, which has been designated as confidential by the said candidates and tenderers in respect of technical or trade secrets, with the exception of the cases under Article 44 and Article 73 (4) and (5) herein.

Section V

Examination, Evaluation and Ranking of Tenders

Article 34. (1) The contracting authority shall appoint a commission for the conduct of a public procurement procedure, designating the composition of the said commission and substitute members.

(2) Any such commission shall consist of at least three members, of whom one shall mandatorily be a qualified lawyer and the remaining members shall be persons possessing the professional expertise and practical experience required in accordance with the subject matter and complexity of the procurement.

(3) The contracting authority may furthermore recruit outside experts as members of or consultants to the commission.

(4)  In an open procedure, the commission shall be appointed by the contracting authority after the final date fixed for receipt of tenders, and in a restricted procedure, competitive dialogue or negotiated procedure the commission shall be appointed after the final date fixed for receipt of the requests to participate.

(5)  The contracting authority shall give the commission a time limit for completion of the work thereof which must take account of the specifics of the public procurement and may not exceed the period of tender validity.

(6) The remunerations of the members of the commission and all expenses arising in connection with the work of the said commission shall be for the account of the contracting authority.

Article 35. (1)  Eligibility for appointment as members of or consultants to the commission shall be limited to persons who declare that they:

1. have no material interest in the award of the public procurement to a particular candidate or tenderer;

2. are not "connected," within the meaning given by the Commerce Act, to any candidate or tenderer in the procedure or to any subcontractor named by any such candidate or tenderer, or to any members of the management or supervisory bodies thereof.

(2) The members of the commission and the consultants shall be obligated to respect the confidential nature of any information as may come to the knowledge thereof in connection with the work thereof on the commission.

(3) The members of the commission and the consultants shall submit declarations on conformity with the circumstances referred to in Paragraph (1) and on compliance with the requirements referred to in Paragraph (2) to the contracting authority upon the appointment thereof and at each stage of the procedure upon occurrence of any intervening change in the circumstances as declared.

Article 36. (1) The commission shall make decisions by a majority of the members thereof. Should any member of the commission dissent from a decision adopted, the said member shall sign the memorandum with a dissenting opinion and shall set forth the justification thereof in writing.

(2) Should, for any valid reason, any member of the commission be unable to perform the duties thereof and may not be replaced by a substitute member, the contracting authority shall issue an order designating a new member.

(3)  The members of the commission shall have no right to remove any request or tender from the premise whereon the meeting is held.

Article 37. (1) The contracting authority shall select the supplier, contractor or service provider of the public procurement on the basis of evaluation of the tenders under one of the following criteria as indicated in the notice:

1. the lowest price tendered;

2. the most economically advantageous tender.

(2)  Where the criterion chosen is the most economically advantageous tender, the contracting authority shall be obligated to indicate the award criteria, the relative weighting given thereto and the methods for arrival at the evaluation of each criterion. In duly justified cases, where the relative weighting given to each criterion cannot be established, the contracting authority shall indicate the descending order of importance of the criteria.

(3)  The criteria referred to in Paragraph (1) shall be applied solely in respect of the tenders of the tenderers which are not excluded from participation in the procedure on the grounds provided for in Articles 46 to 48 herein and which meet the requirements for economic and financial standing, professional qualifications and technical capacity as stated by the contracting authority.

(4)  Where the criterion for evaluation of the tenders is the most economically advantageous tender and the contracting authority has indicated in the notice that the said authority authorizes the submission of variants, all variants submitted which meet the stated requirements referred to in Item 5 of Article 28 (1) herein shall be subject to evaluation.

(5)  In the cases referred to in Paragraph (4), the tenderer shall enter the ranking solely with the variant which has been ranked highest.

Article 38.  A public procurement award procedure shall be completed by:

1. conclusion of a contract with the selected supplier, contractor or service provider, or

2. a decision to terminate the procedure.

Article 39. (1) The contracting authority shall terminate a public procurement award procedure by a justified decision in the cases where:

1.  not a single tender or request to participate has been submitted, or not a single candidate or tenderer has been admitted to participation;

2.  none of the tenders or requests to participate is responsive to the terms and conditions as announced in advance by the contracting authority;

3. all tenders, which are responsive to the terms and conditions as announced in advance by the contracting authority, exceed the financial resources which the said authority can ensure;

4.  the tender ranked highest or second highest declines to conclude a contract;

5.  the necessity to conduct the procedure is eliminated as a result of a material change in circumstances, including an impossibility to ensure financing for performance of the procurement for any reasons which the contracting authority could not have foreseen;

6.  irregularities are detected in the initiation and conduct of the procedure which cannot be cured without change of the terms whereunder the procedure has been announced;

7.  a public procurement contract is not concluded by reason of existence of any of the grounds covered under Article 42 herein.

(2) Within three days after the decision referred to in Paragraph (1), the contracting authority shall be obligated to notify the candidates or tenderers of the termination of the public procurement award procedure, as well as to dispatch a copy of the said decision to the Executive Director of the Agency.

(3) In the cases referred to in Item 3 of Paragraph (1), the contracting authority shall mandatorily include in the decision the lowest price tendered and may not conclude a contract of the same subject at a price equal to or greater than the price specified in the decision upon conduct of a successive procedure within the same year.

(4)  Upon termination of the public procurement award procedure under Items 3, 5 and 6 of Paragraph (1), the contracting authority shall reimburse the candidates or tenderers for the expenses incurred thereby on purchase of the contract documents within fourteen days after the decision referred to in Paragraph (1).

Article 40.  The contracting authority may initiate a new public procurement award procedure with the same subject matter solely where the originally announced procedure has been terminated and no appeal has been lodged against the decision on termination, or where an appeal has been lodged against the said decision and the dispute has been settled.

Section VI

Public Procurement Contract

Article 41.  (1) The contracting authority shall conclude a written public procurement contract with the tenderer who or which has been selected as supplier, contractor or service provider as a result of the procedure conducted.

(2) The public procurement contract shall mandatorily include all proposals contained in the tender of the tenderer on the basis of which the said tenderer has been selected as supplier, contractor or service provider.

(3) The contracting authority shall conclude the contract referred to in Paragraph (1) after expiry of the time limit for lodgment of an appeal against the decision on selection of a supplier, contractor or service provider in the cases where no appeal has been lodged or where an appeal has been lodged but imposition of an interim measure has not been requested.

(4) Where an appeal has been lodged against the decision on selection of a supplier and a request has been submitted for imposition of an interim measure, the contracting authority shall conclude a contract within one month after the entry into effect of the ruling whereby the request for imposition of an interim measure has been rejected.

(5) It shall be inadmissible to conclude public procurement contracts of indefinite duration.

Article 42.  A public procurement contract shall not be concluded with a tenderer selected as supplier, contractor or service provider, who or which, upon signature of the said contract:

1. fails to present documentary proof of registration in compliance with the requirement established by Item 2 of Article 25 (3) herein;

2. fails to fulfil the obligation referred to in Article 47 (9) and Article 48 (2) herein;

3. fails to present the contract performance guarantee as determined.

Article 43. (1)  The parties to a public procurement contract may not amend the said contract.

(2)  An amendment to a public procurement contract shall be admissible on an exceptional bases:

1. where, for reasons of extreme urgency brought about by a force majeure, the time limits of the contract cannot be adhered to, or

2. upon change of State-regulated prices or reduction of the agreed prices in the interest of the contracting authority.

(3) The contracting authority may terminate a public procurement contract if not in a position to perform the obligations thereof as a result of any circumstances which have occurred after the conclusion of the said contract. In such a case, the contracting authority shall be liable to the supplier, contractor or service provider for damages for the detriment incurred by signature of the contract.

Article 44. (1)  The contracting authority shall be obligated to dispatch information on each public procurement contract as concluded of framework agreement as concluded to the Agency for entry into the Public Procurement Register not later than seven days from conclusion of any such contract or framework agreement.

(2)  The information referred to in Paragraph (1) must be based on the standard form referred to in Paragraph 7 of Article 19 herein.

(3)  Any information referred to in Paragraph (1), whereof the disclosure conflicts with a law, shall not be entered into the Public Procurement Register. In such a case, the contracting authority shall justify this to the Agency.

(4)  Any information which, according to the standard form referred to in Article 19 (7) herein, is not intended for publication, shall be used for statistical purposes.

(5)  The information on contracts concluded on the basis of a dynamic purchasing system may be send on a quarterly basis. In such case, the contracting authority must send the information within seven days after the end of each quarter.

(6)  Contracting authorities shall be obligated to send the Agency information on each contract concluded on the basis of a framework agreement within seven days after the conclusion of any such contract.

(7) Contracting authorities shall be obligated to notify the Agency in the cases where they have received a communication from the European Commission on breaches ascertained thereby upon conduct of a public procurement award procedure.

(8)  In the cases referred to in Paragraph (7), contracting authorities shall send the entire case file together with a written opinion thereon within three days.

Article 45. Any unregulated matters in connection with the conclusion, performance and termination of public procurement contracts shall be governed by the provisions of the Commerce Act and of the Obligations and Contracts Act.

Section VII

Dispatch of Information to European Commission

Article 45a. (1) Contracting authorities covered under Items 1 to 4 of Article 7 herein shall be obligated to send the European Commission the procedure initiation notices and the information on concluded contract where the public procurements have a lev equivalent equal to or greater than:

1. EUR 137,000 - for supplies, services covered under Annex 2 to Item 1 of Article 5 (1) herein and design contest, as well as for supplies of products covered under Annex 4 hereto;

2. EUR 211,000 - for services covered under Annex 3 to Item 2 of Article 5 (1) hereto;

3. EUR 5,278,000 - for works;

4. EUR 211,000 - for supply of products which are not indicated in the list under Annex 4 hereto, where the supply is performed by contracting authorities carrying out activities in the field of national defence.

(2) Contracting authorities covered under Items 5 and 6 of Article 7 herein shall be obligated to send the European Commission the procedure initiation notices and the information on concluded contract where the public procurements have a lev equivalent equal to or greater than:

1. EUR 422,000 - for supplies, services and design contest;

2. EUR 5,278,000 - for works.

(3) Contracting authorities shall be obligated to send the European Commission or to publish on the buyer profile prior information notices where the public procurements have a lev equivalent equal to or greater than:

1. EUR 750,000 - by category of supplies and services covered under Annex 2 to Item 1 of Article 5 (1) herein;

2. EUR 5,278,000 - for works.

(4) The information covered under Paragraphs (1) and (2) shall be sent according requirements of Article 44, Paragraphs (2) - (5)

(5) Notices covered under Parahraph (1) and (2) shall be sent by electronic means, by post or by telefax for publication in the Official Journal of the European Union. In the cases referred to in Article 76 (3) and in Article 86 (3) herein, the notices shall be sent by telefax or by electronic means.

(6) Contracting authorities, which publish prior information notices on the buyer profile thereof, shall send the European Commission, electronically, a communication in accordance with an endorsed standard form. Prior information notices may not be published on the buyer profile before the date of dispatch of the said communication.

(7) Notices drawn up and transmitted by electronic means shall be published in the Official Journal of the European Union not later than five days after they are sent. Notices which are not transmitted by electronic means shall be published not later than twelve days after they are sent, and in the cases referred to in Article 76 (3) and in Article 86 (3) herein not later than five days after they are sent. In exceptional cases, in response to a request by contracting authorities covered under Item 5 or 6 of Article 7 herein, notices shall be published within five days, provided that the notice has been sent by fax.

(8) Notices shall be sent for publication in full in an official language of the European Union as chosen by the contracting authority, this original language version constituting the sole authentic text.

(9) Notices and the contents thereof may not be published in the Republic ofBulgaria before the date on which they are sent to the European Commission.

(10) Notices published at national level may not contain any information other than the information contained in the notices dispatched to the European Commission but must mention the date of dispatch of the notice to the Commission.

(11) Upon request, contracting authorities shall be obligated to supply proof of the dates on which notices are dispatched and the confirmation of the date of publication given by the European Commission.

Chapter Four

COMMON RULES FOR PARTICIPATION IN PUBLIC PROCUREMENT AWARD PROCEDURE

Section I

Requirements to Candidates or Tenderers

Article 46.  Any candidate or tenderer, who or which possesses the required qualifications as announced in advance, may participate in a public procurement award procedure.

Article 47. (1) The contracting authority shall exclude from participation in a public procurement award procedure any candidate or tenderer who or which:

1. has been convicted by an effective sentence, unless rehabilitated, of:

(a) a criminal offence against the financial, tax or social security system, including money laundering, under Articles 253 to 260 of the Criminal Code;

(b) bribery under Articles 301 to 307 of the Criminal Code;

(c) participation in an organized criminal group under Articles 321 and 321a of the Criminal Code;

(d) a criminal offence against property under Articles 194 to 217 of the Criminal Code;

(e) a criminal offence against the economy under Article 219-252 of the Criminal Code;

2. has been adjudicated bankrupt;

3. is being wound up or is in any analogous situation arising from a similar procedure under national laws and regulations.

(2) The contracting authority may exclude from participation in a public procurement award procedure any candidate or tenderer who or which:

1. is the subject of pending bankruptcy proceedings, or has made an out-of-court arrangement with the creditors thereof within the meaning given by Article 740 of the Commerce Act or, in case the candidate or tenderer is a foreign person, is in any analogous situation arising from a similar procedure under national laws and regulations, including where the affairs thereof are being administered by the court, or the candidate or tenderer has suspended the business activities thereof;

2. has been disqualified from practising a specific profession or activity according to the legislation of the State where the violation has been committed;

3. incurs any pecuniary obligations to the State or to a municipality within the meaning given by Article 162 (2) of the Tax and Social-Insurance Procedure Code, established by an effective act of a competent authority, save as where a rescheduling or deferral of the said obligations has been allowed, or any pecuniary obligations related to the payment of social insurance contributions or taxes according to the legal standards of the State in which the candidate or tenderer is established.

(3) The contracting authority shall indicate in the contract notice the circumstances covered under Paragraph (2) which, if existing, lead to the exclusion of the candidate or tenderer.

(4) The requirements referred to in Paragraph (1) and Items 2 and 3 of Paragraph (2), as indicated in the notice, shall apply to the managing directors or to the members of the management bodies of the candidates or tenderers and, or in case the said members are legal persons, to the representatives of the said persons on the relevant management body.

(5) Any candidates or tenderers, whereof any member of a management or supervisory body or any interim holder of such office is a person connected, within the meaning given by § 1 of the Civil Servants Act, with the contracting authority or with any holders of a position of responsibility at the organization of the said contracting authority, may not participate in a public procurement award procedure.

(6) The requirements referred to in Items 2 and 3 of Paragraph (1) and Item 1 of Paragraph (2) shall not apply in the cases referred to in Item 12 of Article 90 (1) and Item 11 of Article 103 (2) herein.

(7) Where the candidate or tenderer envisages the participation of subcontractors in the performance of the procurement, the requirements covered under Paragraphs (1) and (5) and the requirements under Paragraph (2) as indicated in the notice shall apply to the subcontractors as well.

(8) Upon submission of a request to participate or of a tender, the candidate or tenderer shall attest, by means of a declaration, the non-existence of the circumstances covered under Paragraphs (1) and (5) and the conformity with the requirements under Paragraph (2) as indicated in the notice.

(9) Upon signature of the public procurement contract, the tenderer, who or which has been selected as supplier, contractor or service provider, shall be obligated to produce documents issued by the relevant competent authorities attesting the non-existence of the circumstances covered under Paragraphs (1) and (2).

Article 48. (1)  Any foreign natural or legal person, in respect of whom or which any of the circumstances covered under Article 47 (1) and (2) herein exists in the State in which the said person is established, may not participate in a public procurement award procedure.

(2) Upon signature of the public procurement contract, the tenderer who or which has been selected as supplier, contractor or service provider, shall be obligated to produce documents issued by a competent authority attesting the non-existence of the circumstances covered under Article 47 (1) herein and of the circumstances covered under Article 47 (2) herein as indicated in the notice, or an extract from a court register, or an equivalent document by a judicial or administrative authority of the State in which the said tenderer is established.

(3)  Where the documents referred to in Paragraph (2) are not issued in the relevant foreign State, or where the said documents do not cover all cases specified in Article 47 (1) and (2) herein, the tenderer shall submit a declaration on oath, if such declaration has a legal significance according to the law of the State in which the tenderer is established.

(4)  Where the declaration on oath has no legal significance according to the relevant national law, the tenderer shall submit a solemn declaration made before a judicial or administrative authority, a notary or a competent professional or trade body in the State in which the tenderer is established.

Article 49.  (1) The contracting authority may require from each candidate or tenderer to prove the enrolment thereof in one of the professional or trade registers of the State in which the tenderer is established, or to present a declaration or a certificate of the existence of such registration, issued by the competent authorities according to the national law of the said tenderer.

(2) In procedures for the award of public procurements of services, insofar as candidates or tenderers have to possess a particular authorization or to be members of a particular organization in order to be able to perform the service concerned in their country, the contracting authority may require the said candidates or tenderers to prove that they hold such authorization or membership.

Article 50. (1)  As evidence of the economic and financial standing of the candidates or tenderers, the contracting authority may require that they provide one or more of the following references:

1. appropriate statements from bankers or copy of a professional liability insurance policy;

2. the annual financial statement or any of the constituent parts thereof, where publication of the said parts is required by the legislation of the State in which the candidate or tenderer is established;

3.  a statement of the overall turnover and of the turnover in respect of the supplies, services or works which are subject matter of the procurement, for the three previous years, depending on the date on which the candidate or tenderer was created or commenced activities.

(2)  If, for any valid reason, the candidate or tenderer is unable to provide the references required by the contracting authority, the said candidate or tenderer may prove the economic and financial standing thereof by any other document which the contracting authority considers appropriate.

(3)  The requirements for the economic and financial standing of the candidates or tenderers, which the contracting authority establishes, must take account of the value and subject matter of the public procurement.

Article 51. (1) As evidence of the technical capacity and/or qualifications of the candidates or tenderers, the contracting authority may require that they provide one or more of the following references according to the nature, quantity and subject matter of the procurement:

1.  a list of the principal supply and service contracts performed in the past three years, including the sums, dates and recipients, accompanied by certificates of satisfactory execution;

2.  a list of the works contracts performed in the past five years, accompanied by certificates of satisfactory execution for the most important works; the said certificates shall indicate the value, date and site of the works, as well as whether the works were carried out professionally and in accordance with the statutory requirements;

3. a description of the technical facilities for ensuring quality and the study and research facilities;

4. a list of the technicians involved, including those responsible for quality control;

5. samples, description and/or photographs of the goods to be supplied, the authenticity of which must be certified if the contracting authority so requests;

6. certificates issued by accredited quality management institutes or agencies attesting the conformity of the products with the relevant specifications or standards;

7. documents attesting the educational and professional qualifications of the candidate or tenderer and/or of the managerial staff thereof, or of the persons responsible for carrying out the service or the works, as well as the supply which includes services and/or preparing and commissioning of the work;

8. a declaration of the average annual manpower and of the size of managerial staff of the candidate or tenderer for the last three years;

9.  a statement of the technical equipment available to the service provider or contractor for performance of a public procurement of services or works;

10. a statement of the technicians whom the candidate or tenderer can call upon for carrying out the works, whether or not they belong to the firm;

11.  for public procurements of works and services: an indication of the environmental protection measures that the candidate or tenderer will apply when performing the procurement, if the contracting authority has envisaged such measures in the notice.

(2)  In procedures for the award of public procurement of supplies which require geodesy or installation work, the provision of services and/or the execution of works, contracting authorities may impose requirements on the candidates or tenderers with regard to their skills, efficiency, experience and reliability in providing the services or in executing the installation or building works.

Article 51a.  (1) A candidate or tenderer may use the resources of other natural or legal persons upon performance of the procurement, subject to the condition that the said candidate or tenderer prove that it will have the said resources at its disposal.

(2) The conditions referred to in Paragraph (1) shall furthermore apply where the candidate or tenderer in the procedure is a combination of natural and/or legal persons.

Article 52.  Where the subject matter of a public procurement is complex or is required for a special purpose, the contracting authority may carry out a check of the technical capacity of the candidate or tenderer and, if necessary, on the study and research facilities and the quality assurance measures thereof. Alternatively, the contracting authority may request that such a check be carried out on its behalf by a competent official body of the country in which the candidate or tenderer is established, subject to the agreement of the said body.

Article 53. (1)  Should the contracting authority require the production of certificates drawn up by independent bodies attesting conformity of the candidate or tenderer to quality management systems, the contracting authority shall define the quality management systems by reference to the relevant European standards series.

(2)  In the cases referred to in Item 11 of Article 51 (1) herein, the contracting authority shall require the production of certificates drawn up by independent bodies attesting the compliance of the candidate or tenderer with certain environmental management standards, and shall refer to the Community Eco-Management and Audit Scheme (EMAS) or to environmental management standards based on the relevant European or international standards.

(3) The independent bodies referred to in Paragraphs (1) and (2) must be accredited under the relevant European standards series by the Bulgarian Accreditation Service Executive Agency or by a foreign accreditation body which is a full member of the European co-operation for Accreditation.

(4) The contracting authority shall accept equivalent certificates issued by bodies established in other Member States, as we well as other evidence of equivalent environmental quality assurance or environmental protection measures.

Article 53a.  (1) A candidate or tenderer may submit a certificate or registration on an official list of approved economic operators of a MemberState of the European Union.

(2) In the cases referred to in Paragraph (1), the contracting authority may not exclude a candidate or tenderer from a public procurement award procedure or to refuse to conclude a contract therewith on the grounds of the said candidate or tenderer failing to produce any of the documents referred to in Article 48 (2), Article 50 (1) and (2), Article 51 and Article 51 (3) herein, provided that the circumstance is proved by the certificate produced.

Section II

Tender

Article 54. (1)  In drawing up a tender, each tenderer must strictly observe the terms and conditions announced by the contracting authority.

(2)  Before expiry of the time limit fixed for submission of tenders, each tenderer in a procedure may modify, supplement or withdraw the tender thereof.

Article 55. (1)  Each tenderer in a public procurement award procedure shall have the right to submit a single tender.

(2)  Where the criterion of the most economically advantageous tender applies in the evaluation of the tenders and the contracting authority has authorized variants, the tenderer may submit several variants in the tender thereof.

(3)  Only variants meeting the minimum requirements laid down by the contracting authority shall be taken into consideration.

(4) No party, who or which has given their consent and is named as a subcontractor on the tender of another tenderer, may submit a separate tender.

Article 56. (1) Each tender must contain:

1.  documentary proof of registration of the tenderer or, where a natural person, an identity document;

2. documentary proof of provision of a participation guarantee;

3. evidence of economic and financial standing under Article 50 herein, as specified by the contracting authority in the contract notice;

4. evidence of technical capacity and/or qualifications under Article 51 herein, as specified by the contracting authority in the contract notice;

5.  a declaration on non-existence of the circumstances covered under Article 47 (1), (2) and (5) herein;

6. (rep.)

7.  the subcontractors who or which will participate upon performance of the procurement and the share of the participation thereof, where the tenderer envisages subcontractors;

8. time limit for performance of the procurement;

9. price tendered;

10. a declaration to the effect that the price tendered complies with the minimum labour cost requirement, in the cases where the public procurement is of works;

11. any other information indicated in the notice or in the contract documents;

12.  a list of the documents contained in the tender, signed by the tenderer.

(2)  Where the tenderer envisages participation of subcontractors, the documents referred to in Items 1, 3, 4, 5 and 10 of Paragraph (1) shall be submitted for each subcontractor.

(3)  Where the tenderer in the procedure is a combination which is not a legal person, the documents referred to in Items 1, 3, 4, 5 and 10 of Paragraph (1) shall be submitted by each natural or legal person included in the said combination.

(4)  Where the tenderer in the procedure is a foreign natural or legal person or a combination of such persons, the tender shall be submitted in the Bulgarian language, and the document referred to in Item 1 of Paragraph (1) shall be produced in a legalized translation, whereas the documents referred to in Items 1, 3, 4, 5 and 10 of Paragraph (1), which are in a foreign language, shall be produced both in the original and in a translation. Where the tenderer is a combination, the documents shall be produced by each of the participants in the said combination.

Article 57. (1)  The tender shall be submitted sealed in an opaque envelope by the tenderer or by an authorized representative thereof, in person or by registered mail with advice of delivery. On the said envelope, the tenderer shall indicate a mailing address, a telephone number and, if possible, a facsimile number and an electronic mail address and, where the tender is for lots, the lots to which the said tender applies.

(2) The price tendered shall be submitted in a separate sealed envelope, inscribed "Price Tendered" and inserted into the envelope containing the tender.

(3) Upon receipt of any tender, the consecutive number, date and hour of receipt shall be marked on the envelope, and the said particulars shall be entered in an incoming register wherefor a document shall be issued to the bearer.

(4) The contracting authority shall reject and shall immediately return to the tenderers any tenders submitted after expiry of the time limit for receipt or in envelopes which are unsealed or physically unsound. These circumstances shall be noted in the register referred to in Paragraph (3).

(5)  The tender may alternatively be submitted by electronic means under the terms and according to the procedure established by the Electronic Document and Electronic Signature Act. In such case, the tenderer shall be obligated to submit to the contracting authority all documents which do not exist in electronic format according to the procedure established by Paragraph (1) before expiry of the time limit for receipt of tenders.

(6)  The terms and procedure for receipt and storage of tenders sent by electronic means shall be regulated by the Regulations for Application of this Act.

Article 58. (1)  The period of tender validity shall be the period during which the tenderers shall be bound by the terms of the tenders thereby submitted.

(2) The contracting authority shall fix the period referred to in Paragraph (1) in calendar days.

(3)  The contracting authority may require from the ranked tenderers to extend the period of tender validity thereof until the point of conclusion of the public procurement contract.

Article 58a.  (1) The procedures shall be prepared and conducted by the contracting authority. The contracting authority shall be responsible for the receipt and storage of the requests to participate, the tenders and the projects.

(2) The information exchange may be by post, by telefax, by electronic means under the terms and procedure established by the Electronic Document and Electronic Signature Act, or by a combination of those means, according to the choice of the contracting authority. The means of communication chosen must be generally available.

(3) The exchange and storage of information in the course of conduct of the public procurement award procedure shall be carried out in such a way as to ensure that the integrity, veracity and confidentiality of the requests to participate and the tenders are preserved.

(4) All representations by a contracting authority to the candidates or tenderers shall be evidenced in writing.

(5) The decisions of the contracting authority, which the contracting authority is obligated to communicate to the candidates or tenderers, shall be delivered thereto in person upon signed acknowledgement of service or shall be dispatched by registered mail with advice of delivery, by telefax or by electronic means under the terms and according to the procedure established by the Electronic Document and Electronic Signature Act.

(6) The contracting authority shall be obligated to preserve the entire documentation on the conduct of each public procurement award procedure for at least four years after completion of the performance of a contract.

Section III

Guarantees

Article 59. (1)  Each candidate or tenderer shall provide a guarantee for participation in the public procurement award procedure, and the candidate or tenderer, who or which has been selected as supplier, contractor or service provider, shall provide a performance guarantee upon signature of the contract.

(2) The contracting authority shall determine the terms and the amount of the participation guarantee as a fixed sum of money which may not exceed 1 per cent of the value of the procurement.

(3) The contracting authority shall determine the terms and the amount of the contract performance guarantee as a percentage of the value of the public procurement which may not exceed 5 per cent of the value of the said procurement.

(4) The contracting authority shall also require other performance guarantees in the cases specified by a statute.

(5) (rep.)

Article 60. (1) Guarantees shall be provided in one of the following forms:

1. a cash deposit;

2. a bank guarantee.

(2)  The candidate or tenderer or the selected supplier, contractor or service provider shall be free to choose a form of the participation guarantee or of the performance guarantee, as the case may be.

Article 61. (1)  The contracting authority shall have the right to retain possession of the participation guarantee when the candidate or tenderer in a public procurement award procedure:

1.  withdraws the request to participate thereof after expiry of the time limit for receipt of requests to participate or withdraws the tender thereof after expiry of the time limit fixed for receipt of tenders;

2.  lodges an appeal against the decision of the contracting authority whereby the results of the selection are declared or the decision on selection of a supplier, contractor or service provider: until settlement of the dispute;

3.  is selected as supplier, contractor or service provider but fails to fulfil the obligation thereof to conclude a public procurement contract.

(2)  In the cases covered under Paragraph (1), Items 1 and 3 where the candidate or tenderer has provided a bank guarantee, the contracting authority shall have the right to proceed with exercise of the rights arising from the said guarantee.

Article 62. (1)  The contracting authority shall release the participation guarantees:

1. provided by any excluded candidates within three working days after expiry of the time limit for lodgment of an appeal against the decision of the contracting authority on qualification proceedings;

2. provided by any excluded and ranked tenderers within three working days after expiry of the time limit for lodgment of an appeal against the decision of the contracting authority on selection of a supplier, contractor or service provider.

(2) (rep.).

(3) Upon termination of the public procurement award procedure, the guarantees provided by all candidates or tenderers shall be released within three working days after expiry of the time limit for lodgment of an appeal against the decision on termination.

(4)  The contracting authority shall release the guarantees referred to in Paragraph (1) without owing interest for the period during which the said guarantees were in the legal possession thereof.

Article 63. The terms and time limits for retention or release of the performance guarantee shall be regulated in the public procurement award contract.

Chapter Five

OPEN PROCEDURE

Section I

Open Procedure Preparation

Article 64. (1) Upon conduct of an open procedure, the contracting authority shall dispatch the contract notice simultaneously to the State Gazette for publication on the Internet site thereof and to the Agency for entry into the Public Procurement Register not later than fifty-two days before expiry of the time limit fixed for the receipt of tenders.

(2)  The time limit referred to in Paragraph (1) may be shortened to thirty-six days, provided that the prior information notice has been dispatched for publication between fifty-two days and twelve months before the date of dispatch of the notice referred to in Paragraph (1) and contains the information which is available at the date of dispatch of the said notice.

(3)  The time limit referred to in Paragraphs (1) and (2) may be shortened by seven days where the notice has been transmitted by electronic means and by additional five days if the contracting authority offers full access by electronic means to the contract documents from the date of publication of the notice in an electronic format and if an Internet address at which these documents are accessible is specified in the text of the notice.

(4)  In the cases referred to in Paragraphs (2) and (3), the time limit for receipt of tenders may not be less than twenty-two days.

Article 65. (1) Upon fixing a time limit for receipt of tenders, the contracting authority must take account of the complexity of the procurement and of the time required for preparing tenders.

(2) The contracting authority shall be obligated to extend the time limit for receipt of tenders by up to thirty days where the time limit as initially fixed is insufficient owing to a need of:

1. on-the-spot inspection of documents supporting the contract documents;

2. visit to the site of performance.

(3) The contracting authority may extend the time limit for receipt of tenders by up to thirty days where no tender has been received within the time limit fixed for the receipt of tenders.

(4) Any alteration of the time limit fixed for submission of tenders must be published and entered into the Register. Where the extended time limit is fixed in days, it shall begin to run as from the date of publication on the Internet site of the State Gazette.

Article 66. (rep.)

Article 67. (rep.).

Section II

Examination, Evaluation and Ranking of Tenders

Article 68. (1)  The commission, appointed by the contracting authority to examine, evaluate and rank the tenders, shall commence work after receipt from the contracting authority of the list of tenderers and of the tenders as submitted.

(2)  Upon alteration of the date and hour of the opening of tenders, the tenderers shall be notified in writing.

(3) The commission shall open the envelopes in the order of submission thereof and shall check the contents of the tenders against the list referred to in Item 12 of Article 56 (1) herein.

(4)  Upon opening of the tenders, at least three of the members of the commission shall sign the envelope containing the price tendered, and where the criterion for evaluation is the most economically advantageous tender, all enclosures, which the commission will evaluate under the criteria announced, shall be signed as well.

(5) The tenderers participating in the procedure or authorized representatives thereof shall have the right to be present at the actions of the commission referred to in Paragraphs (3) and (4).

(6) The commission shall verify whether the tenders are responsive to the terms and conditions as announced in advance.

(7) The commission may verify at any time the data as stated by the tenderers, require additional information relating to the certificates and documents produced according to Articles 50 to 53 herein, as well as require in writing the submission, within a time limit thereby established, of additional evidence of the circumstances set forth in any tender.

Article 69. (1)  The commission shall propose for exclusion from the procedure any tenderer:

1.  who or which has failed to submit any of the documents required under Article 56 herein;

2.  in respect of whom there exist any circumstances covered under Article 47 (1) and (5) herein and any circumstances covered under Article 47 (2) herein as indicated in the notice;

3. who or which has submitted a tender which is non-responsive to the terms and conditions as announced in advance by the contracting authority

4.  who or which has submitted a tender which does not satisfy the requirements established by Article 57 (2) herein.

(2)  The commission may not propose for exclusion any tenderer where the said tenderer has the right to provide the relevant service in the MemberState of establishment thereof regardless of the status or legal form of business organization of the said tenderer.

(3) While the conduct of the open procedure is in progress, the tenderers shall be obligated to notify the contracting authority of any intervening changes in the circumstances covered under Article 47 (1) and (5) herein and the circumstances covered under Article 47 (2) herein as indicated in the notice within seven days after the occurrence of any such change.

Article 70. (1)  Should any tenderer tender a price which is more than 30 per cent lower than the average price of the rest of the tenders for the specific public procurement, the commission must request from the said tenderer a detailed justification in writing of the price so tendered. The commission shall allow reasonable time for submission of the said justification which shall not be less than three working days from receipt of the request therefor.

(2)  The commission may accept the justification in writing referred to in Paragraph (1) and not exclude the tender where objective circumstances are cited, relating to:

1. an original solution as to the performance of the public procurement;

2. the technical solutions proposed;

3.  the exceptionally favourable conditions available to the tenderer;

4. the economics of the performance of the public procurement;

5.  obtaining State aid.

(3)  Should a tenderer fail to submit the justification in writing as requested within the time limit as fixed, or should the commission determine that the circumstances cited are not objective, the commission shall propose the tenderer for exclusion from the procedure.

(4)  Where the commission establishes that the tender of a tenderer is abnormally low because the tenderer has obtained State aid on legal grounds which cannot be proven within the time limit as fixed, the commission may propose rejection of the tender and exclusion of the tenderer.

Article 71. (1) The commission shall examine the tenders admitted and shall evaluate the said tenders in accordance with the terms and conditions as announced in advance.

(2)  Where the contracting authority has authorized the submission of variants in the tender, the commission may not reject a variant on the sole grounds that selection of the said variant would lead to conclusion of a service contract rather than a supply contract or vice versa.

(3)  The commission shall rank the tenderers according to the extent to which the tenders are responsive to the terms and conditions as announced in advance by the contracting authority.

Article 72. (1) The commission shall draw up a memorandum on the examination, evaluation and ranking of the tenders which shall contain:

1. the composition of the commission and a list of the consultants;

2.  a list of the tenderers and the tenders who and which have been proposed for exclusion from the procedure, and the justification of the exclusion thereof;

3. the opinions of the consultants;

4.  the results of the examination and evaluation of the tenders admitted, including a brief description of the tenders submitted by the tenderers and the evaluations under each award criterion, where the criterion of the most economically advantageous tender applies in the evaluation of the tenders;

5.  the ranking of the tenderers whereof the tenders have been admitted to examination and evaluation;

6. the date of drawing up of the memorandum.

(2) The memorandum of the commission shall be signed by all members and shall be delivered to the contracting authority together with the full set of documents.

(3) The commission shall conclude the work thereof by delivery of the memorandum to the contracting authority.

Section III

Selection of Public Procurement Supplier, Contractor or Service Provider

Article 73. (1)  Within five working days after conclusion of the work of the commission, the contracting authority shall issue a justified decision, declaring thereby the ranking of the tenderers and the tenderer who or which has been selected as supplier, contractor or service provider.

(2)  In the decision referred to in Paragraph (1), the contracting authority shall furthermore specify the tenderers and tenders who and which have been excluded from participation in the procedure and the justification of the exclusion thereof.

(3) The contracting authority shall dispatch the decision referred to in Paragraph (1) to the tenderers within three days after the issuing of the said decision. The contracting authority shall notify the European Commission in the cases referred to in Article 70 (4) herein.

(4)  Should a tenderer request so in writing, the contracting authority shall be obligated to afford the said tenderer access to the memorandum within three days after receipt of any such request. The contracting authority may refuse access to some of the data contained in the memorandum where disclosure of the said data conflicts with a statutory instrument or prevents, restricts or distorts competition.

(5)  Should a tenderer so request in writing, the contracting authority shall be obligated to produce a copy of the memorandum under the terms established by Paragraph (4).

Article 74.  (1) The contracting authority shall conclude a public procurement contract with the tenderer who or which has been ranked highest by the commission and who or which has been selected as supplier, contractor or service provider.

(2) Should the tenderer selected as supplier, contractor or service provider decline to conclude a contract, the contracting authority may terminate the procedure or may select the second highest ranked tenderer as supplier, contractor or service provider and conclude a contract therewith.

Chapter Six

RESTRICTED PROCEDURE

Article 75. (1) In the contract notice of public procurement awarded by restricted procedure, the contracting authority may limit the number of candidates which the contracting authority intends to invite to tender, the said number being not less than five. The contracting authority may furthermore indicate the maximum number of such candidates. The number of candidates invited must be sufficient to ensure free and fair competition.

(2)  In the contract notice, the contracting authority shall indicate objective and non-discriminatory criteria or rules which the contracting authority will apply upon selection of the candidates under Paragraph (1).

Article 76. (1) The contracting authority shall dispatch the contract notice simultaneously to the State Gazette for publication on the Internet site thereof and to the Agency for entry into the Public Procurement Register not later than thirty-seven days before expiry of the time limit fixed for receipt from the candidates of applications to qualify.

(2)  The time limit referred to in Paragraph (1) may be shortened by seven days where the notice has been dispatched by electronic means as well.

(3) Should any reasons of extreme urgency arise as a result of which the time limit referred to in Paragraph (1) cannot be complied with, contracting authorities covered under Items 1 to 4 of Article 7 herein may fix a time limit for receipt of the applications to qualify that may not be less than fifteen days from the date of dispatch of the notice or less than ten days, where the notice has been sent by electronic means.

(4) In the cases referred to in Paragraph (3), the contracting authority shall be obligated to specify the reasons of extreme urgency in the contract notice.

Article 77. (1) The contracting authority shall conduct qualification proceedings for the purpose of selecting the candidates possessing the financial and technical capacity required to perform the public procurement.

(2) Any candidate may submit an application to qualify.

(3) An application to qualify must contain:

1. documentary proof of registration of the candidate or, where a natural person, an identity document;

2.  a declaration on non-existence of the circumstances covered under Article 47 (1), (2) and (5) herein;

3. (rep.)

4. evidence of economic and financial standing under Article 50 herein, as specified by the contracting authority in the contract notice;

5. evidence of technical capacity and/or qualifications under Article 51 herein, as specified by the contracting authority in the contract notice;

6. the subcontractors who or which will participate upon performance of the procurement and the share of the participation thereof, where participation of subcontractors is envisaged;

7. documentary proof of provision of a participation guarantee.

(4)  Where the candidate envisages participation of subcontractors, the documents referred to in Items 1, 2, 4 and 5 of Paragraph (3) shall be submitted for each subcontractor.

(5)  Where the candidate in the procedure is a combination which is not a legal person, the documents referred to in Items 1, 2, 4, 5 and 6 of Paragraph (3) shall be submitted by each natural or legal person included in the said combination.

(6)  Upon fixing a time limit for receipt of applications to qualify, the contracting authority must take account of the complexity of the procurement and of the time required for preparing tenders.

(7)  The contracting authority may extend the time limit for receipt of applications to qualify by up to thirty days where no applications have been received within the time limit fixed.

Article 78. (1)  The application shall be submitted according to the procedure established by Paragraphs (1), (3), (4) and (5) of Article 57 herein, by telefax or shall be stated by telephone.

(2)  Where the application to qualify is communicated by telephone, the candidate must confirm the said application in writing before expiry of the time limit fixed for the receipt of applications.

(3)  Where the application to qualify is dispatched by telefax, the contracting authority may obligate the candidate to confirm the said application by a letter sent with advice of delivery or by electronic means. This requirement, as well as the time limit for receipt of the written confirmation, must be indicated in the contract notice.

(4)  The terms and procedure for receipt and storage of the applications sent by electronic means or by telefax shall be regulated in the Regulations for Application of this Act.

(5) In the qualification proceedings, the contracting authority shall have no right to require a tender, and the candidate shall have no right to submit a tender.

Article 79. (1)  The contracting authority shall appoint a commission for the conduct of the procedure according to the procedure established by Articles 34 to 36 herein.

(2)  The commission shall examine the applications to qualify as submitted and shall select the candidates on the basis of the documents submitted according to the notice and attesting the economic and financial standing of the said candidates, and the technical capacity and/or qualifications thereof to perform the public procurement. The candidates or authorized representatives thereof may be present at the opening of the applications.

(3)  In case the contracting authority has not included in the notice a limitation of the candidates who or which will be invited to tender, the contracting authority shall be obligated to invite all candidates who or which meet the selection criteria and the minimum requirements for technical capacity.

(4)  In case the contracting authority has including in the notice a limitation of the number of candidates who or which will be invited to tender, the contracting authority shall be obligated to invite such number of candidates as is at least equal to the minimum number set in advance.

(5)  Where in the cases referred to in Paragraph (4) the number of candidates who or which meet the requirements indicated in the restricted procedure notice exceeds the stated maximum number of persons who or which will be invited to tender, the commission shall perform the selection on the basis of the objective and non-discriminatory criteria indicated in the notice.

(6)  Where the number of candidates meeting the selection criteria and the minimum requirements for technical capacity is below the minimum number indicated in the notice, the contracting authority may continue the procedure by inviting all candidates who or which meet the selection criteria and possess the required technical capacity. In such case, the contracting authority may not invite other persons, who or which did not request to participate, or candidates, who or which do not possess the required technical capacity, to tender.

(7) The commission shall draw up a memorandum on the results of the selection referred to in Paragraph (2) which shall contain:

1. the composition of the commission and a list of the consultants;

2. a list of the candidates who or which do not meet the requirements announced by the contracting authority, as well as the justification of this;

3. a list of the candidates who or which meet the requirements referred to in Paragraph (2) and will be invited to tender and, where the number of such candidates exceeds the number of candidates who or which will be invited to tender as indicated in the notice, the candidates selected on the basis of the objective and non-discriminatory criteria indicated in the notice;

4. the date of drawing up of the memorandum.

(8) Within five working days after the date of the memorandum, the contracting authority shall declare by a decision the candidates proposed by the commission who or which will be invited to submit tenders. The said decision shall furthermore specify the candidates who or which do not meet the requirements announced by the contracting authority and the justification of this.

(9) Within three days after making the decision referred to in Paragraph (8), the contracting authority shall dispatch the said decision to the Agency and to all candidates who or which have not been admitted, and shall simultaneously and in writing invite all selected candidates to tender.

Article 80.  An invitation to submit a tender for participation in the restricted procedure must contain:

1. a time limit and place for submission of tenders;

2.  number and date of publication of the contract notice;

3.  a copy of the specifications and all supporting documents, unless contained in the contract documents, and Internet address for accessing the specifications and the supporting documents, where they are made available by electronic means;

4.  the award criteria, the relative weighting given thereto and the methods for arrival at the integral evaluation of the tender, indicated in descending order of importance, if they are not given in the contract notice.

Article 81.  (1) In the invitation referred to in Article 80 herein, the contracting authority shall fix a time limit for receipt of the tenders which may not be less than forty days from the date of dispatch.

(2) The time limit referred to in Paragraph (1) may be shortened to twenty-two days, provided that the prior information notice has been dispatched for publication between fifty-two days and twelve months before the date of dispatch of the notice referred to in Article 76 (1) herein and contains the information available at the date of dispatch of the said notice.

(3) The time limit referred to in Paragraph (1) may be reduced by five days where, as from the date of publication of the notice, the contracting authority offers full access by electronic means to the contracting documents, specifying in the text of the notice an Internet address at which the said documents are accessible.

(4) In the cases referred to in Article 76 (3) herein, the contracting authority may fix a time limit for receipt of tenders which may not be less than ten days from the date of dispatch of the invitation referred to in Article 80 herein.

(5) In the cases referred to in Article 76 (3) herein, within seven days before expiry of the time limit for receipt of tenders, each candidate may request in writing additional information relating to the contract documents from the contracting authority. The contracting authority shall be obligated to reply within three days after receipt of any such request and to notify the non-inquiring candidates according to the procedure established by Article 29 (2) herein.

(6) Upon fixing a time limit for receipt of tenders, the contracting authority must take account of the complexity of the procurement and of the time required for preparing tenders.

(7) The contracting authority shall be obligated to extend the time limit for receipt of tenders by up to thirty days in case of a need of:

1. on-the-spot inspection of documents supporting the contract documents;

2. visit to the site of performance.

Article 82. (1) Each tender must satisfy the requirements covered under Article 56 herein.

(2)  A tenderer need not submit the documents which the said candidate has submitted with the application to qualify.

Article 83.  The examination, evaluation and ranking of tenders shall follow the procedure established by Articles 68 to 72 herein.

(2) The selection of a supplier, contractor or service provider of the procurement shall follow the procedure established by Articles 73 and 74 herein.

Chapter Six A

COMPETITIVE DIALOGUE

Article 83a. (1) The contracting authority may award a public procurement by means of competitive dialogue where the procurement is particularly complex, which precludes award of the said procurement applying an open or restricted procedure.

(2) A public procurement is considered to be "particularly complex" where the contracting authority is objectively unable to define:

1. the technical specifications referred to in Article 30 herein, and/or

2. the financial or legal make-up of the procurement.

(3) In the decision on the award of a public procurement by means of competitive dialogue, the contracting authority shall justify the choice of the said procedure and shall approve the contract notice and a descriptive document.

(4) The contracting authority shall set out the needs and the requirements thereof in the contract notice and/or in the descriptive document, which shall replace technical specifications.

(5) Upon award of a public procurement by means of competitive dialogue, the contracting authority shall evaluate the tenders on the sole basis of the criterion for the most economically advantageous tender.

Article 83b. (1) The contracting authority shall dispatch the public procurement notice simultaneously to the State Gazette for publication on the Internet site thereof and to the Agency for entry into the Public Procurement Register not l