INTRODUCTION

On 02.02.2016 the Bulgarian Parliament adopted entirely new Public Procurement Law, which will come into effect on 15.04.2016. The new law introduces the requirements of Directive 2014/24/EU on public procurement and repealing Directive 2014/18/EC and Directive 2014/25/EU on procurement by contracting authorities, operating in the water, energy, transport and postal services and repealing Directive 2014/17/EC. Besides those two entirely new directives, there others that are transposed such as the existing Directive 89/665/EEC and Directive 92/13/EEC of The Council on the procedures for reviews on the award of public procurements and Directive 2009/81/EC on the coordination of the procedures for the awarding of some of the public procurements for construction, supply and services by contracting authorities or  entities in the fields of defense and security. Some of the provisions related to electronic means of communication, the presentation of the European Single Procurement Document in electronic form, electronic availability of the Centralized procurement, take effect in 2017, 2018 and 2020. The regulation related to the implementation of control by random selection from PPA takes effect from September 1, 2016.

The special rules for contracts , awarded by contracting authorities in the water, energy, transport and postal services sectors as well as contracts, awarded by contracting authorities in the field of defense and security are outlined in separate parts of the law.

GENERAL RULES

•  CONTRACTING AUTHORITIES

In the new law the contracting authorities are explicitly separated to public and sector contracting authorities. It is stated that contract authorities are not the legal entities themselves (as it is in the current law), but the natural persons that represent them or who are authorities according to the legislation.

The Act introduces the possibility of joint procurement between domestic contractors and contractors from other Member States of the European Union, which is an entirely new moment.

•  COMBINED PROCUREMENT PROCEDURE

The law regulates public procurements which have more than one object.

The procedures for awarding the fulfillment of contracts which include an object of public procurement and concession are explicitly regulated.

•  EXCEPTIONS

Besides the currently known exceptions, from contracting authorities are excluded procurements and contests for projects which support the activities of a contracting authority related to the provision or exploitation of public electronic communications networks, or provision of one or more public electronic communications services.

•  RESERVED CONTRACTS

New elements were introduced in the regulation of procurements, designed for implementation by specialized enterprises or cooperatives of people with disabilities that caused widespread public discussion of their adoption by State Gazette № 40 of 2014, effective on 01.10.2014.

The Council of Ministers on a proposal from the Minister of Labor and Social Policy determines a list of goods, services and construction which are reserved for specialized enterprises or cooperatives of people with disabilities or for business entities, which main objective/goal is the social or professional integration of people with disabilities or disadvantaged people, as well as programs to create secure jobs within the contracting authorities may retain orders(procurements). In this regard, to July 15, 2016 the Council of Ministers on a proposal by the Minister of Labor and Social Policy should determine by a decision a new list of goods and services, that are reserved for specialized enterprises, according to The Common Procurement Vocabulary (CPV)

It is explicitly introduced that in the awarding of the reserved public procurements can participate entities/persons, provided that at least 30 percent of their listed members are disabled people or people with disabilities. The entities/persons must be registered as specialized enterprises or cooperatives of people with disabilities at least three years before the date of opening of the specific procedure for public procurement, which is entirely new requirement in order to prevent fictitious registration for easier access to public procurement.

The conditions and the order for participation, consideration the offers, the rank order and the reserved service contract conclusion will be regulated with the implementing rules for the Law.

•  GUARANTEES

The option, given to the contracting authorities to ask for guarantees for participation from the persons submitting applications/tenders for participation, can no longer be exercised. The option, given to the contracting authorities, to ask for guarantee, which secures the advanced payment, is explicitly regulated.

The contracting authority is able to ask from the successful contractor to provide guarantees, which can secure the performance of the contract or the resources, provided in advance. With regard to the maximum amount of the performance guarantee there is no alteration. The guarantee, that secures the contract performance, can’t exceed five percent of the contract’s value and the guarantee that secures the advance payment can be up to the amount of those resources. When the procurement is awarded to specialized enterprises and cooperatives of persons with disabilities, the guarantee for the contract performance can’t exceed two percent of the contract’ s value.

The possibilities for provision the guarantees are extended- in one of the following forms:

1. Sum of money;
2. Bank guarantee;
3. Insurance, which secures the performance with cover over the contractor’s liability.

•  TYPES OF PROCEDURES

The negotiated procedures, conducted by different categories contracting authorities, are divided upon adoption of the new Law. The public invitation is replaced by other means for awarding of procurement contracts with lоw value. The types of procedures under the Law are thoroughly indicated in Art. 18. Innovation Partnership is an entirely new procedure.

1. Open procedure;
2. Restricted procedure;
3. Competitive procedure with negotiation;
4. Negotiated procedure with a prior invitation to tender;
5. Negotiated procedure with publication of a contract notice;
6. Competitive dialogue;
7. Innovation partnership;
8. Negotiated procedure without a prior contract notice;
9. Negotiated procedure without a prior invitation to tender;
10. Negotiated procedure without publication of a contract notice;
11. Design contest;
12. Public competition;
13. Direct agreement procedure.

Concerning the selection of the procedure, it is explicitly settled what types of procedures the awarding authority can choose freely – respectively the public awarding authority can choose freely open or restricted procedure. The public awarding authority can entrust implementation of the public procurement by open procedure, restricted procedure, competitive procedure with negotiation, competitive dialogue, innovation partnership, negotiated procedure without a prior contract notice, or design contest.

The sector contracting authorities choose freely open or restricted procedure, negotiated procedure with a prior invitation to tender, or competitive dialogue. For the rest types of procedures, which they can conduct – innovation partnership, negotiated procedure without a prior invitation to tender and design contest – there should be the preconditions for their application.

The negotiated procedure with publication of a contract notice and the negotiated procedure without publication of a contract notice can be implemented in conducting of the award of public defense and security contracts.

All types of procedures and their main specifics are briefly discussed below.

Open procedure

All interested persons can submit a tender in the open procedure.

Restricted procedure

In the restricted procedure, any economic operator may submit a request to participate, which must provide information requested by the contracting authority about the lack of grounds for exclusion and compliance with the selection criteria. In the restricted procedure offers submit only candidates that the contracting authority invited after a qualitative selection.

Competitive dialogue

The competitive dialog is a procedure in which the contracting authority conducts a dialogue with the candidates admitted after qualitative selection in order to determine one or more suggested solutions that meet its requirements and then invite the candidates who suggested the solutions to file/submit final tenders. Contracting authorities may specify prizes or payments to the participants in the dialogue.

Innovation partnership

Innovation partnership is a new procedure, in which the contracting authority conducts negotiations with the candidates admitted after qualitative selection in order to establish/set up a partnership with one or more partners to carry out certain research and development activity.

In selecting candidates, contracting authorities shall in particular apply criteria concerning the candidates’ capacity in the field of research and development and of developing and implementing innovative solutions. Only those economic operators invited by the contracting authority, following its assessment of the requested information, may submit research and innovation projects/tenders.

The contracting authorities negotiate with tenderers the initial and all subsequent tenders submitted by them to improve their content, except for the final tender. The minimum requirements and the award criteria can not be subject to negotiations.

In procurement through Innovation Partnership the contracting authority is entitled to evaluate offers/tenders only on the criteria of optimum quality-price ratio.

The innovation partnership aims at the development of an innovative product, service or works and the subsequent purchase of the resulting supplies, services or works, provided that they correspond to the performance levels and maximum costs agreed between the contracting authorities and the participants.

The contract governs the execution of the procurement in successive phases according to the steps in the process of research and innovation, which may include the manufacturing of the products, the provision of the services or the completion of the works.

Design contest

The design contest is a procedure in which the contracting authority acquires, mainly in the fields of town and country planning, architecture and engineering or data processing, a plan or design selected by a independent jury after being put out to competition with or without the award of prizes and could be open or restricted. The design contest is held as part of the procedure for the award of public procurement for a service or with prizes or payments for the participants. In an open contest all interested parties may submit projects. When the design contest shall be conducted with a limited number of participants the contracting authority sets out clear and non-discriminatory criteria to reduce the number of candidates. In this case projects may be submitted only by candidates who have been invited by the contracting authority.

Negotiated procedures, conducted by public contracting authorities:

Competitive procedure with negotiation

Any economic operator may submit a request to participate in competitive procedure with negotiation which must provide information requested by the contracting authority about the lack of grounds for exclusion and compliance with the selection criteria.

Negotiated procedures without prior publication.

The cases in which is possible for the contracting authorities to conduct a negotiated procedures without prior publication of contract notice are exhaustively listed in  Art. 79 of PPL. In the decision for the opening of the procedure the contracting authority is required to motivate the choice of procedure and the applicable grounds which opens it.

The terms and conditions/modalities for conducting the procedure will be determined by the Rules of applying the law, which is to be accepted.

Negotiated procedures, conducted by entities operating in the water, energy, transport and postal services sectors ( sector contracting authorities):

Negotiation with a prior call for publication

Any economic operator may submit a request to participate in the procedure, which must provide the information requested by the contracting authority about the lack of grounds for exclusion and compliance with the selection criteria.

Only those economic operators(candidates) invited by the contracting authority after a conducted qualitative selection may submit an initial tender which shall be the basis for (the subsequent) negotiations.

Negotiation without a prior call for publication

The procedure can be performed only in specific cases, explicitly referred to in the law and when the procurement is conducted purely for the purpose of research, experimentation, study or development; awarded contracts do not include quantity production to establish commercial viability or to recover research and development costs; or when, in a very short time the opportunity arises to obtain supplies on particularly favorable terms and at a price considerably lower than normal market prices.

In this case, to negotiations are invited those who offer goods at prices lower than the market. The terms and order or conducting the procedure are yet to be determined by the Rules of applying the law.

Negotiated procedures, conducted by contracting authorities, operating in the fields of defense and security:

Negotiation with prior publication of a contract notice.

In conducting the negotiated procedure with publication of a contract notice, the contracting authority follows the rules for a competitive procedure with negotiation, with certain exclusions, determined in the law. The contracting authority may provide that the negotiations be conducted in successive stages to reduce the number of tenders to be negotiated by applying the award criteria. This possibility is stated in the contract notice or in the documentation.

Negotiated without prior publication of a contract notice

The cases, in which is possible for the contracting authorities to conduct a negotiated procedure without prior publication of a contract notice, are exhaustively listed in Art. 164 of PPAct. The possibility of awarding a public procurement through a negotiated procedure without publication are almost identical to those applicable at the time for awarding a negotiated procedure without notice. The terms and order for conducting the procedure will be determined by the Rules of applying the law.

•  LOWER COST PUBLIC PROCUREMENTS

The new law allows two types of procedures, intended for low-cost public procurements. The threshold for contracting in construction is between BGN 270 000 to BGN 5 000 000 , and as for deliveries and services, including services pointed in appendix №2 – from 70 000 to BGN 264 033 or up to the respective European threshold, which requires conducting a procedure (shown bellow in the first table).

Public contest

Public contest resembles the open procedure, but it is applicable when awarding contracts with lower value, respectively – the terms for the public contest are shorter.

An assessment of the technical and price offers of the participants is allowed before reviewing the documents for accordance with the selection criteria, in case the consignor has set such opportunity in the notice.

The check for presence of elimination grounds and accordance with the selection criteria is done in a matter which is not influenced by the results of the valuation of the technical and price offers.

Procedure of direct negotiations

The consignor may conduct direct negotiations with certain entities when some of the provided grounds are met for opening a procedure of negotiations without notice or grounds explicitly pointed for this type procedure.

The conditions and order for conduction of this procedure will be defined in rules of applying the law.

•  COMPARISON OF THE VALUE THRESHOLDS FOR AWARDING PUBLIC PROCUREMENTS

The new law increases the value thresholds for conducting procedures following the rules of the law – both from public and sector consignors. To place it in juxtaposition, a comparative table is given bellow:

Public authorities conduct procedures according to the Public procurement act when the forecast prices of the procurements are as following:

Sector contracting authorities conduct procedures according to the law on forecast value of the public procurements, as following:

Above the already pointed thresholds the information, related to the contract award and execution of public procurements should be published in the “Official Journal” of the European Union. Procurements beneath the pointed thresholds are awarded according to the rules on lower cost procurements.

In the next table there is a comparison between the value thresholds for awarding contracts through collection of offers with notice or with an invitation to certain entities and the thresholds for awarding contracts through public invitation.

The thresholds for direct awarding of contracts for deliveries and services are increased in comparison with the existing so far – respectively from BGN 30 000 or BGN  70 000 for services included in appendix №2. For construction the threshold is reduced to BGN  50 000 in comparison with the existing so far, which is BGN 60 000.

•  CRITERIA FOR THE AWARD OF PUBLIC CONTRACTS

With the adoption of the public procurement law, the content of the concept of “the most economically advantageous offer” as understood until now, is changed. The most economically advantageous offer is not a single criteria for evaluation, but a collective term for the assignment criteria. The most economically advantageous offer can now be determined only on the basis of the “lowest price” criteria.

According to the new provisions the most economically advantageous offer shall be determined on the basis of one of the following criteria:

1. The lowest price;

2. Level of costs, taking into account the cost-effectiveness, including costs for the entire duration of the project;

3. Optimum quality/price ratio, which shall be assessed on the basis of the price or the level of expenditure and the level of indicators, including quality, environmental and/or social aspects, relating to the subject matter of the public contract.

•  ASSESSMENT METHODOLOGY

The law gives detailed regulations of the possibilities for the inclusion of indicators for the evaluation of offers, by introducing limits for the contracting entities, to which they must adhere in the preparation of the methodologies for assessments. The possibility to assess the competence of personnel is now introduced. The indicators, which are included in the criteria for the evaluation of the offers, other than the lowest price criteria, may contain:

1. Measure of quality, including technical parameters, aesthetic and functional characteristics, accessibility, destination for all users, social, environmental and innovative characteristics and innovative commercial techniques and conditions;

2. Organization and professional competence of the staff responsible for the implementation of the contract, where the quality of the personnel may have a substantial impact on the overall execution of the contract, or

3. Service and maintenance, technical assistance and conditions such as: Date of execution, manner and period of performance or period of completion.

The indicators, included in the criteria other than the lowest price criteria, should be related to the subject matter of the contract. They may contain factors which relate to each stage of the life cycle of the works, supplies or services notwithstanding that these factors do not relate to the characteristics referred to in the technical specifications. The indicators must not give unlimited freedom of choice and should ensure real competition.

The express prohibition of the inclusion of criteria for selection as an indicator for evaluation is preserved.

•  UNUSUALLY FAVORABLE OFFERS

The requirement for the submission of a written justification in the presence of unusually favorable offer is retained, and there are no substantial changes in the legislature. The threshold for allowed deviation from the average value remains the same: the amount of 20 %.

Justification may relate to:

1. Economic features of the manufacturing process, of the services or of the construction method;

2. The technical solutions chosen, or the presence of the exceptionally favorable conditions available to the participant for the provision of products or services or the implementation of construction;

3. Innovation of the proposed by the participant decision in relation to the works, supplies or services;

4. Compliance with all the applicable rules and requirements relating to the protection of the environment, social and labor law, applicable collective agreements and/or provisions of international environmental, social and labor law;

5. The possibility for the participant to receive state aid.

The law introduces a new possibility for the contracting authority to require additional information from the participant in connection with the information provided by him with the justification.. The information obtained from the participant’s justification shall be evaluated in terms of its completeness and objectivity in relation to the circumstances referred to above, which the participant has claimed. The justification may not be accepted and the participant may be excluded from the procedure, but only in case the evidence presented is not sufficient to justify the proposed price or costs.

The following are considered as mandatory grounds for the rejection of the justification: a breach of the rules and regulations relating to the protection of the environment, a breach of the social and labor law regulations which are applicable, a breach of the collective agreements and/or the provisions of international environmental, social and labor law which are all listed in the Annex No 10 of the Public Procurements Law, as well as received state aid.

NEW RULES RELATED TO THE OBLIGATIONS OF THE CONTRACTING AUTHORITIES

•  MARKET CONSULTATIONS

The law introduces the possibility of the contracting authority to hold market consultations, by seeking advice from independent experts or authorities or by market participants, respecting the principles of fair competition, non-discrimination and transparency. The persons who provided the consultation could participate in the procedure for the assignment of the public contract, and the contracting authority has the obligation to ensure that these persons do not have priority over other applicants or participants.

Before the adoption of the law, there was no explicit possibility for the contracting authorities to conduct market consultations. The purpose of carrying out the market consultation is to guarantee that the public contracts are concluded with competitive prices and characteristics for the execution of the activities they have as projects.

•  DIVIDING INTO LOTS

Regarding the separate lots, the law states that when a public contract does not include separate lots, in the decision for the start of the procedure the contracting entity shall indicate the reasons for this.

A completely new regulation, aimed at encouraging the participation of small and medium-sized enterprises, is the newly established ability of the Council of Ministers to determine the areas in which the public procurement must be divided into separate lots, in accordance with the specialized sectors of activity of small and medium-sized enterprises and their capacities.

When contracting entities have indicated that offers may be submitted for several or for all the separate lots, they have the right to restrict the number of separate lots that are entrusted to one contractor. This number shall be indicated in the contract notice or in the invitation for confirming interest.

With the said novelty, the legislator has adopted a practice, opposite to the established one. Until now the division of the procedures into separate lots was solely dependent on the judgment of the particular contracting authority, with the exception of the procurements designed for by specialized enterprises or cooperatives of people with disabilities.

•  SELECTION CRITERIA

It is specified that the criteria can apply not only to the economic and financial status, technical and professional skills, but also to: validity (capacity) to practice an exact activity as the latter was not displayed so far as a selection criteria. Common requirements to selection criteria are defined, most of which are currently valid as well. It is explicitly introduced that when determining the documents to prove the selection criteria contracting authorities should require mainly those covered by the electronic database “e-Certis”.

Economical and financial status

Regarding to the economical and financial status of the candidates or the participants the contracting authority may demand one or more of the following requirements:

1. to have achieved a minimum overall turnover, including a minimum turnover in the field covered by the contract, calculated on the basis of annual turnover;

2. to have insurance “Professional Liability” with coverage which is corresponding to the volume and the character of the procurement or arising from a legal act;

3. to have achieved a positive correlation between certain assets and liabilities.

The required minimal turnover from the contracting authority may not exceed more than twice the estimated value of the contract, unless it is justified by the nature of the works, services or supplies. The turnover figures are related to the last three completed financial years depending on the date on which the candidate or the participant is established or started trading. When the procurement is subdivided into several lots the requirement applies to each lot.

There is no change regarding the documents to prove the economical and financial status of the candidates or the participants.

Technical and professional abilities

Besides the previously known requirements related to the presence of experience in similar or identical activities and availability of personnel and equipment, it is introduced the possibility to the contracting authority to require from the participants to have a system for managing and tracking of the supplies which they will apply when performing the contract.

Significantly new is the warning that the contracting authority may not accept proof of technical and professional abilities when it comes from a person who has an interest that can lead to benefit within the meaning of Article 1, paragraph 3 of the Law on prevention and ascertainment of conflict of interests.

•  SUBCONTRACTORS

With regard to the subcontractors – at the stage of participation in the procedure the candidates and the participants state in the application or in the tender the subcontractors and the proportion of the procedure which will assign them if they intend to use such and must submit evidence of the subcontractors’ obligations. It is not settled the form of that evidence. Payment to subcontractors will be made by the contracting authority based on a request and a statement by the contractor on whether he disputes the payments as undue.

With the contract notice the contracting authority may determine the proportion of the contract to be performed by the subcontractors by setting minimum and maximum percentage of the contract value but not more than 30 percent.

•  APPROVED ECONOMIC OPERATORS

It is settled the possibility of proving with certificate of registration in official lists of approved economic operators or certification by authorities.

Compared to current legislation an attention should be drawn to the fact that in determining the authorities or persons who create and maintain the official lists of approved economic operators for certain activities or certification authorities for certification of economic operators for compliance of certain technical specifications is under the capacity of the Council of ministers, i.e. there is personalization and concrete definition of the entities that could be seen as an incentive for the procurement procedures as far as ensuring the reliability of certain entities practically extends the range of potential participants and interested parties. The aim is to optimize the process of proving coverage of the selection criteria.

•  INTRODUCTION OF COMPUTERIZATION

The introduction of computerization in public procurement is delayed; the provisions of the relative regulations will take effect in stages – respectively in 2017, 2018 and 2020. However, since this year all decisions and notices may be submitted by the contracting authorities only electronically to the public procurement register. It is established an opportunity to send tenders electronically but there is no such obligation for the participants at this stage.

Subject to electronic auction may not be service and work public contracts which have the object intellectual activity and are not liable to automatic evaluation by electronic means, including activities for designing of construction objects. The contracting authorities may conduct an electronic auction when awarding a public procurement through an open procedure, a restricted procedure, competitive procedure with negotiation or a negotiation procedure with preliminary invitation. Before conducting an electronic auction the appointed commission carries out initial evaluation of the tenders in accordance with the set assigning criteria. The contracting authority sends by electronic means simultaneously invitation to all participants whose tenders are accepted, containing the result from the initial evaluation of each tender, the procedure for connection to the electronic equipment, date and time for the start of the electronic auction, method of closing the electronic auction.

It is envisaged the creation of a centralized electronic platform. When awarding a public procurement the contracting authorities should use a unified electronic web-based platform. Since it gives opportunity for centralized awarding of a public procurement the central purchasing authorities may use electronic platforms for centralized awarding different from the platform referred to above, provided that they ensure technical compatibility and connectivity with it. All procedures for awarding a public procurement conducted by a central purchasing authority shall be conducted using electronic means of communication. Group of contracting authorities may decide to create a central purchasing body.

•  TENDERS EVALUATION COMMISSION

In comparison the previous regulations of the commission’s members were much more detailed and accordingly demanded obligatory requirements on the professional competence of the commission members. The new rules do not introduce a requirement for a minimum number of the commission’s members as well as the rules about the means of attracting external expert when the contracting authority does not have one.

It is envisaged only that the commission is composed of an odd number of members who should not be in a position of conflict of interests with the candidates or the participants. The commission’s actions are recorded and the results of its work are described in a report.

The rules of the commission’s work should be set out in regulation for implementing the law.

•  EXAMINATION OF TENDERS

In the public procurements procedure first of all a qualification proceedings are conducted and then the tenders of the participants are examined.

When conducting an open procedure the contracting authority may foresee in the announcement the evaluation of the technical offers and the price offers of the participants to be made before considering the documents for the qualification proceedings. Using this new opportunity is allowed when all the proposals in the participants’ tenders are represented by a numeric value which is announced when opening the tenders.

The purpose of the provision is related to reducing the time for review and evaluation of tenders by the commission appointed by the contracting authority as well as an overall shortening of time for the award of a certain public procurement. It should be noted that the possibility of applying the above-mentioned procedure for examination of the tenders is connected with the assessment criteria of the tender which the contracting authority has chosen. The procedure is applicable only when the indicators have numeric expressions. After the ranking of the tenders made on the basis of the evaluations of the technical offer and the price offer, the presented documents shall be checked for compliance with the law and the selection criteria set by the contracting authority.

•  CONCLUSION AND AMENDMENT OF TO A PUBLIC PROCUREMENT CONTRACT

The maximum duration of the contracts with periodic performance is five years.

Some new grounds were introduced about the amendments to the public procurement contracts.

NEW ASPECTS RELATED TO THE RIGHTS AND OBLIGATIONS OF THE CANDIDATES AND THE PARTICIPANTS IN PUBLIC PROCUREMENT PROCEDURES

•  RELIABILITY OF PARTICIPANTS

The participants prove that they have taken measures to ensure their reliability despite the statutory exclusion criteria. In case that the measures taken by the candidate or the participant are sufficient to ensure its reliability the contracting authority should not eliminate it from the procedure. The scope of the crimes under the Criminal Code is expanded in respect of which the convicted and non-rehabilitated persons are not allowed to participate in public procurement procedure. In addition, as ground for elimination of a participant is displayed case of available market consultation where carried out by the contracting authority actions have not guaranteed equal treatment of the participants. Elimination from the procedure shall apply to persons who are found with effective penal decree or judgment that in the conduct of public contract violated provisions of the Labor Code or similar obligations established by an act of the competent authority under the legislation of the state in which the candidate or participant is established.

According to the current legislation the mandatory grounds for elimination of the participants have an absolute character and it is not possible to avoid applying  them by presenting documents or otherwise.

•  USING THE THIRD PARTIES’ RESOURCES

As before, the candidates or the participants on a particular procurement can rely on the capacity of third parties irrespective of the legal relationship between them in terms of criteria relating to economical and financial status, technical capability and professional competence. Regarding to the criteria relating to education and professional qualification or professional experience, the candidates or the participants can rely on third parties’ capacity  only if these persons will participate in the implementation of the part of the contract for which this capacity is necessary.

•  EUROPEAN SINGLE PROCUREMENT DOCUMENT

When submitting of a request to participate or submitting a tender the candidate or the participant declares lack or grounds for elimination and accordance with the selection criteria through presentation of a European Single Procurement Document (ECPD). It provides relevant information required by the contracting authority and indicates national databases which contain the declared circumstances or the competent authorities which are obliged to provide the information under the state’s legislation in which the candidate or the participant is established.

The aim of the document is to prevent the contracting authority from requiring documents which already have been presented to them or which they have officially known.

However, before the conclusion of a public procurement contract, a framework agreement or award a contract based on a framework agreement, the contracting authority shall require from the participant selected for a contractor to provide relevant evidence for the lack of grounds for elimination from the procedure and also the compliance with the selection criteria set. The provisions concerning the presentation of the European Single Procurement Document are accessible electronically in a form approved by an act of the European Commission. The ban on the contracting authorities to require documents that can be provided by direct and free access to national databases of Member States enters into force in 2018.

CONTROL OF THE PUBLIC PROCUREMENT PROCEDURES

The new law introduces significant changes in the control of the public procurement procedures. The value of the public procurement will no longer be defining for the control carried by the Public Procurement Agency.

The Public Procurement Agency will supervise:

–       by random selection of procedure for awarding a public procurement;

–       negotiated procedures without publication of a contract notice;

–       negotiated procedures without preliminary invitation for participation;

–       contracts awarded on the basis exclusions from the scope of the law;

–       amendments to the public procurement contracts;

The preliminary control will be carried out in an order determined by the regulations for the implementation of the Public Procurement Act, which is to be adopted.

The legal compliance and performance of the public procurement contracts control will be carried out by the National Audit Office and the Public Financial Inspection Agency.

APPEALING

Overall, the range of acts which are subjects to appeal, actions and omissions of the contracting authorities has no significant differences with the current law. There are several new elements related to the appeal:

-it is indicated that the following decisions are not subject to appeal:

1. awarding a contractor by an internal competitive selection when the total value of contracts awarded under a framework agreement by the contracting authority is less than or equal to 50,000 BGN for construction and 30,000 BGN for supply and services, excluding services listed in Annex № 2.

2. when initiating a public procurement award procedure on the reasons for the inability to separate the subject of the contract into lots;

– when the public procurements have a lower value a shorter – 15 days period is defined for the decision of the Commission for Protection of Competition ,counting from the initiation of proceedings in comparison with the one-month period which is currently established.

The period for lodging an appeal also remains unchanged – the period for lodging an appeal before the Commission for Protection of Competition (CPC) is 10 days as the commencement is different depending on what decision is being appealed. The period for lodging an appeal against the decision of CPC before Supreme Administrative Court remains 14-days after the parties are notified for the CPC’s decision.

SANCTIONS

         Essential novelty in administrative sanctioning regimes is that the amount of the sanction is relatively determined in percentage of the value of the concluded contract, including VAT and maximum thresholds are set. Only fines, but not penalty payments, are laid down for infringement of the law. This is explained by the defining of the group of contracting authorities like natural persons.

The absence of indication in the contract notice that the procurement is reserved for specialized enterprises is explicitly introduced as an infringement, which was not sanctioned so far. The fine for the contracting authority is two percent of the contract’s value, including VAT, but it can’t exceed the sum of BGN 10 000.