On 23.03.2020 was promulgated Measures and Actions during the State of Emergency Act. The declared in the Republic of Bulgaria state of emergency on 13.03.2020 posed a number of questions about postponing certain actions or postponing the fulfillment of obligations. But what are the consequences for the awarding authorities and for the participants in public procurement and is the law clear enough in this regard?

• What happens with procedures, opened before the announcement of the state of emergency, and with procedures, opened within the frames of the state of emergency

The matter of procedures, opened before the state of emergency, presented a few unclarities. On the one hand the awarding authorities are asking themselves if they should continue the actions of conducting the procedure in the conditions of a state of emergency but on the other hand the participants are questioning if the term for receiving offers shall be extended. And if those questions are not pressing for the group of awarding authorities that has started implementing the electronic platform for public procurement (CAIS), another substantial group of awarding authorities is still applying the old procedure for consideration of paper applications and offers.

It could be concluded that no changes are made in the terms for conducting procedures for public procurement that have already began, as well as that an end was not put to the opening of new procedures during the state of emergency. The proposal for an explicit stoppage of procurements was discussed between the first and the second reading of the law in the National Assembly but it was dismissed.

Regarding the terms for receiving offers on already announced procurements, the new law does not impose special rules which would lead to termination and/ or postponement of the expiry of these terms after the state of emergency has finished. In the Public Procurement Act (PPA) are fixed minimal terms for receiving offers for the different kinds of procedures but the decision for their duration is in the hands of the awarding authority who also has the option to extend them at their own discretion. For that reason, the terms for submitting offers for public procurement fall outside of the applicable field of the Measures and Actions during the State of Emergency Act.

• What happens with the terms for appealing acts and actions of the awarding authority, expiring during the state of emergency

This matter is the most controversial in respect of the term for appealing before the Competition Protection Commission (CPC), considering the procedure which is formed before the commission is not a judicial one. Are there grounds in the new law for stopping the term for submitting an appeal before the CPC?

The terms for appealing acts and actions of awarding authorities are fixed in the Public Procurement Act. This pertains to terms, envisaged in a normative act, with the expiring of which the right of interested people or participants to submit an appeal is extinguished and the latter generally are private legal entities. Given the stated, it could be said that these terms fall inside of the applicable field of Art. 3, p. 2 of the Measures and Actions during the State of Emergency Act and it follows that they should stop running during the period from 13.03.2020 until the end of the state of emergency. What does the termination of the term essentially mean – let’s take the following example: you have received a decision for grading in a public procurement on 10.03.2020 which you would like to appeal. As of 13.03.2020 three days from the established by the law 10-day term for appealing before the CPC have expired and the term at this moment is stopped. After the cessation of the state of emergency, you are consequently supposed to have 7 more days to submit the appeal. The practice of the CPC on considering such appeals is yet to be analyzed though.

• What are the rest of the changes in regard to the public procurement

With Measures and Actions during the State of Emergency Act are accepted a few explicit provisions as well which allow for a greater flexibility of the awarding authorities in the awarding in the conditions of the state of emergency.

Certain urgent actions are explicitly excluded from the scope of the Measures and Actions during the State of Emergency Act:

• awarding authorities buying hygienic materials, disinfectants, medical devices and personal protective equipment necessary for ensuring the anti-epidemic measures;
• buying medical devices, medical or laboratory equipment necessary for diagnostics and treatment of infected patients, the consumables for them, as well as actions, related to their implementation;
• awarding actions of disposal of pesticides and medical waste according to Ordinance № 1 for the requirements towards the actions of collection and treatment of waste on the territory of medical and healthcare institutions.

This means that for the referred actions the awarding authorities will not be obligated to award a procurement irrespective of the value of the acquired supply or service.

An opportunity has been given for a renegotiation of the term for fulfillment of public procurement

Upon the request of a contractor of public procurement the term for fulfillment could be renegotiated but no longer than the duration of the state of emergency. For this the law does not impose any further requirements except for a request from the contractor and adhering with the period of the state of emergency. The aforementioned ‘renegotiation’ of the term could have a different meaning depending on the particularities of the questioned contract: for instance, for contracts with periodic fulfillment the renegotiation could mean postponing the periodic prestation until the time after the termination of the state of emergency. For one-off contracts it should be estimated, in accordance with the type of action, if the renegotiation could consist of an extension of the term for fulfilment with a term equal to the term of the announced state of emergency. It is of considerable practical importance to be decided if the fulfilment of the contract is terminated altogether, only regarding all the contractor’s obligations or the term for prestation of a certain final outcome is extended. That is why when they make use of this hypothesis, the awarding authorities should carefully devise the conditions of the renegotiation of the term.

The term for mandatory application of the electronic platform for public procurement is extended

The awarding authorities, for which as of 13.03.2020 has not yet occurred the obligation to apply the platform under Art. 39a, Para. 1 from the Public Procurement Act, are now allowed to continue applying the procedure for awarding that was in force until the 1^st of November 2019 for procurements opened up to a month after the termination of the state of emergency. Hence, the awarding authorities that were supposed to begin implementing the electronic platform from 01.04.2020 now have one extra month with effect from the termination of the state of emergency. This rule has a few exceptions. Although the awarding authorities will be enforcing an already terminated procedure up to a month after the state of emergency, they are supposed to integrate it with the current edit of specifically stressed provisions.

In this context, they should be mindful of:

1. The new value thresholds indicated in Art. 6, Para. 1 and Art. 20, Para. 1 from the PPA when one determines the procedure for awarding public procurement in which there is a decrease in the threshold for supplies and services and an increase in the thresholds for services under Annex № 2 and for public works.
2. An additional condition under Art. 12, Para. 1, p. 5 and 7 and Art. 149, Para. 1, p. 13 from the PPA when one signs contracts for in house awarding, for which it is explained that in a legal entity – contractor, capital participation is allowed when such is required by provisions of the national legislation in accordance with the TEU and TFEU.
3. The requirement that the forecast value is current to the date of the opening of the public procurement under Art. 21, Para. 2 from the PPA. As per the current edit the conducting of market research or consultations in the determining of the forecast value is not mandatory. They are stated as an option which could be used at the discretion of the awarding authority.
4. The clarified grounds for removal under Art. 54, Para. 1, p. 5, letter ‘a’ from the PPA which is now only applicable in case of a presentation of documents with invalid content which prove the declared circumstances in the ESPD.
5. The alterations of Art. 100, Para. 3 and Para. 12 from the PPA which are related to a change in the conditions in announced procedures. In Para. 3 it is specified that in order for an awarding authority to make changes they should send for publication (not to have already publicated) a notice for amendment and supplementation of information and the decision with which it is approved. In the cases of Para. 12 the awarding authority practically defines a new term seeing that in the described hypotheses the initially defined term has already expired (p. 1) or the additional term under Art. 158, Para. 4 from the PPA has also proven to be insufficient (p. 2).
6. The clarified grounds for removal under Art. 107 from the PPA with the additions in p. 5 and the inclusion of the new p. 6. The removal from participation when there is a violation of the prohibitions under Art. 101, Para. 9 or 10 should be executed on the grounds of Art. 107, p. 6 from the PPA and not as it was hitherto on the grounds of the respective prohibition. When an application for participation or an offer does not correspond to the condition for validity, the applicant or the participant is removed on the grounds under Art. 107, Para. 5 from the PPA.
7. For the signing of contracts, framework agreements and contracts on the basis of them, the awarding authorities should adhere to the conditions under Art. 112, Para. 9 and 10 and Art. 112a from the PPA and not require from the contractors documents that have already been presented to them and are up to date.

The present material aims to give to awarding authorities and contractors a basal interpretation of the new circumstances, established by the Measures and Actions during the State of Emergency Act.

In case of any questions, you can turn to Lawyer Svilena Dimitrova (s.dimitrova@popovarnaudov.bg) – partner in ‘Popov, Arnaudov and partners’ Law Office and and expert in the field of ‘Public Law and Projects’.