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Amendements in the public procurement

22.03.2020

On 20th March, 2020, the National Parliament adopted at second reading the Measures and Action in a State of Emergency, declared with a decision of the National Parliament from 13th March 2020 Act (hereinafter referred to as “the Act”).

Despite the fact that the Act does not envisage explicit provisions concerning the terms in public procurement procedures under the Public Procurement Act, by way of interpreting the text of art. 3 and art. 4 of the Act, we may conclude that as of 13th March 2020 until the end of the state of emergency all terms for the appeal of decisions of the contracting entities under art. 196 of the Public Procurement Act before the Protection of Competition Commission (“PCC”), and all terms for the appeal of decisions of the Protection of Competition Commission on lodged complaints under the Public Procurement Act before the Supreme Administrative Court under art. 216 of the Public Procurement Act, shall be suspended.
 
With regard to the terms for appeal before the Protection of Competition Commission, it is debatable whether art. 4 of the Act should apply (the PCC is not a court and the terms for appeal before it may be considered judicial only analogically) and whether these terms shall be extended with one month as of the end of the state of emergency. However, we advise on the conservative approach for interpretation and on the assumption that the said terms shall only be suspended from 13th March 2020 until the end of the state of emergency in light of avoiding any risk of missing a procedural term.
Terms determined by the contracting entities at their sole discretion shall not be suspended and are not envisaged in the law (such as terms for applying for opened public procurement procedures), the opening of new public procurement procedures while the state of emergency lasts is not forbidden, as well.
 
By virtue of the Act (art. 13) certain exceptions from the application scope of the Public Procurement Act are introduced, pursuant to which the Public Procurement Act shall not apply in the following cases:
 
1. The purchase by contracting entities of hygiene materials, medical supplies and personal protective equipment necessary to ensure anti-epidemic measures;
2. The purchase of medical supplies, disinfectants, medical and laboratory equipment necessary for diagnosis and treatment of infected patients, their consumables, as well as activities related to their introduction;
3. The assignment of activities for the disposal of hazardous and hospital waste.
 
Further, pursuant to paragraph 12 of the Transitional and Final Provisions of the Act, the introduction of the mandatory electronic assignment by the contracting entities which were supposed to use the Centralized Automatic Information System – Electronic Public Procurement (CAIS EPP) as of 1st April, is now temporary delayed. According to the newly adopted provision, the contracting entities which have not incurred the obligation to implement the platform under art. 39a, para. 1 of the Public Procurement Act by the time the Act enters into legal force, shall apply the assignment procedure in force until 1st November 2019 for public procurement procedures opened until 1 month of the end of the state of emergency.
 

*** Parliament adopted the Act at first reading), whereas with regard to paragraph 12 of the Act – it enters into force as of the date of promulgation of the Act in the State Gazette. This newsletter provides general information related to the adoption of the Emergency Measures Act and it is not exhaustive, whereas it serves only as a guide for interpreting the news as of March 21, 2020. For more information and answers to specific questions related to your business, you can contact us at:  lawyers@penkov-markov.eu